WYLOO METALS PTY LTD v QUARRY PARK PTY LTD [2024] WASCA 38 | Case summary

Section 18 of the 1978 Act relevantly identifies Crown land open for mining that may be the subject of an application for a mining tenement subject to and in accordance with that Act. The identified land is all 'Crown land, not being Crown land that is the subject of a mining tenement'. The term 'mining tenement' is defined in s 8(1) of the 1978 Act and relevantly includes a 'prospecting licence' and a 'mining lease' which is 'granted or acquired under this Act'. That definition operates by reference to the grant or acquisition of a mining tenement rather than its registration.
The Mining Lease is not a mining tenement as defined as it was not granted under the 1978 Act and the agreement for its transfer was not an effective 'acquisition' of a mining tenement prior to registration of a transfer. There is no warrant for reading the reference to a 'mining tenement granted ... under this Act' in the definition of 'mining tenement' as encompassing a mining lease purportedly granted under the 1978 Act contrary to the requirements of the 1978 Act which condition the existence of the power to make the grant.
I note that the plurality in Forrest & Forrest, in the passage quoted at [455] above, refers to titles which are 'liable to be set aside'. I do not read that passage as determining that registration of the grant of a mining tenement means that the tenement is valid until set aside. That was not a question which the court was called on to determine.
To hold that the registration of a mining tenement is effective to create rights until it is set aside is inconsistent with the concept that the title of a grantee of a mining tenement derives from the terms of the grant rather than the registration of the grant (see [436] above). It would also be inconsistent with the express terms of s 103C(7) of the 1978 Act, which provides that:

Court of Appeal (WA)|2024-04-17|Before: Buss P

For the reasons explained above, the first clause of s 116(2) does not apply to the present case as the invalidity of the Mining Lease does not arise from 'any informality or irregularity' within the meaning of that provision. The primary judge was correct to so hold.
I agree with the primary judge's view that, in a case where it applies, the effect of the second clause of s 116(2) is to put a person dealing with the registered holder of a mining tenement that had not been granted validly in the same position as if the title had been granted validly and to protect that person from claims founded on any contended invalidity of the tenement.[135] However, I have taken a different view from the primary judge as to when the second clause of s 116(2) applies.
In my view the second clause of s 116(2) as it currently stands protects only persons taking a transfer or mortgage of a legal interest in a mining tenement once that transfer or mortgage is registered. That is the most natural meaning of the language used in the provision understood in the context of other provisions of the 1978 Act, including the definition of 'dealing' in s 8(1), the provisions for the registration of legal interests in mining tenements and the provision for caveats to protect unregistered interests. The legislative history of the provision, including the settled meaning of equivalents to s 134 of the TLA from which the language of the second clause of s 116(2) was taken, confirms that meaning.
As Cauldron Energy has not obtained a registration of the transfer of the Mining Lease and the consequent legal title to the Mining Lease, it cannot rely on the protection of the second clause of s 116(2). Nor can Quarry Park rely on the second clause of s 116(2) as it obtained the Mining Lease by direct grant rather than any dealing with a registered holder of the mining tenement.

Section 18 of the 1978 Act relevantly identifies Crown land open for mining that may be the subject of an application for a mining tenement subject to and in accordance with that Act. The identified land is all 'Crown land, not being Crown land that is the subject of a mining tenement'. The term 'mining tenement' is defined in s 8(1) of the 1978 Act and relevantly includes a 'prospecting licence' and a 'mining lease' which is 'granted or acquired under this Act'. That definition operates by reference to the grant or acquisition of a mining tenement rather than its registration.
The Mining Lease is not a mining tenement as defined as it was not granted under the 1978 Act and the agreement for its transfer was not an effective 'acquisition' of a mining tenement prior to registration of a transfer. There is no warrant for reading the reference to a 'mining tenement granted ... under this Act' in the definition of 'mining tenement' as encompassing a mining lease purportedly granted under the 1978 Act contrary to the requirements of the 1978 Act which condition the existence of the power to make the grant.
I note that the plurality in Forrest & Forrest, in the passage quoted at [455] above, refers to titles which are 'liable to be set aside'. I do not read that passage as determining that registration of the grant of a mining tenement means that the tenement is valid until set aside. That was not a question which the court was called on to determine.
To hold that the registration of a mining tenement is effective to create rights until it is set aside is inconsistent with the concept that the title of a grantee of a mining tenement derives from the terms of the grant rather than the registration of the grant (see [436] above). It would also be inconsistent with the express terms of s 103C(7) of the 1978 Act, which provides that:

The acceptance of an instrument for registration does not give to it any priority (other than in so far as registration may be taken to be constructive notice), force, effect or validity that it would not have had if this section had not been enacted.

Further, the language of s 18 of the 1978 Act and the associated definition of 'mining tenement' relevantly operates by reference to the grant rather than the registration of the grant of the tenement.

The Subject Land was not 'Crown land that is the subject of a mining tenement' within the meaning of s 18 of the 1978 Act. As such, it was Crown land that was open for mining and could be the subject of a valid application for a prospecting licence by Wyloo Metals in January 2021 and April 2021.[136] Further, the mining registrar or warden considering whether to grant Wyloo Metals a prospecting licence under s 42 of the 1978 Act are not relevantly constrained by s 43(1) of that Act which provides, subject to presently immaterial exceptions:

Where an application for a prospecting licence relates to land that is, or was when the application was made, the subject of a mining tenement, any prospecting licence granted in respect of that application shall not include that land.

Grounds 3 - 7 of Wyloo Metals' appeal challenge the primary judge's conclusion that, had Wyloo Metals been otherwise successful, declaratory relief should be refused on discretionary grounds.
There were essentially three factors which led the primary judge to that conclusion.
First, the primary judge observed:[137]

[S]ince 2013 it was open to any member of the public to make the inquiries necessary to determine whether Quarry Park had complied with the essential preliminaries for the grant of the mining lease and subject to satisfaction of the pre-requisites for declaratory relief, to challenge the grant. Further, as [Wyloo Metals] asserts against [Cauldron Energy], the High Court's decision in [Forrest & Forrest] and its significance was well-known in the exploration and mining industries. In those circumstances the elapse of time between the grant of the mining lease and the commencement of this action, during which it was open to any person interested to make inquiries about the validity of the mining lease, is a factor, and in my opinion, a critical factor, bearing on the exercise of the discretion to grant declaratory relief.

Secondly, the primary judge said:[138]

In my opinion, it would be fundamentally inimical to the public interest in the sound administration of the [1978 Act] to make a declaration that the mining lease is invalid, over eight years after its grant. Making a declaration of invalidity in those circumstances would have the potential to undermine the confidence of those involved in the resources industry in the security offered by title to mining tenements.

Thirdly, the primary judge observed that:[139]

[T]he elapse of the time between [Wyloo Metals'] incorporation [in 2015] and the commencement of the proceedings [in January 2021], coupled with the capacity for it to have established Quarry Park's failure to have complied with the essential preliminaries to a valid grant of the [Mining Lease] at any time since its incorporation, constitute an additional reason for not granting declaratory relief.

The primary judge concluded that the public interest in ensuring that challenges to administrative acts are brought promptly should be given precedence over the public interest in the proper administration of the 1978 Act and ensuring the executive does not deal with the State's resources otherwise than in accordance with that Act.[140] The primary judge also noted that, while Quarry Park was the author of its own misfortune, it would be prejudiced by a declaration as to invalidity made so long after the grant. His Honour said:[141]

Had a challenge to the validity of the grant been made more promptly Quarry Park would not have wasted its resources working an invalid mining lease and therein lies the unfairness of allowing a challenge to the validity of a grant to be brought after such an elapse of time.

In my view, the primary judge erred in principle in failing to have regard to the impact of the invalidity of the Mining Lease on the status of the Subject Land as Crown land open for mining and the rights of Wyloo Metals as an applicant for a prospecting licence. I have concluded that the Subject Land was Crown land open for mining under s 18 of the 1978 Act. It follows that when Wyloo Metals applied for a prospecting licence over that land it exercised the right to do so conferred by s 18, s 40 and s 41 of the 1978 Act. Subject to the exercise of the Minister's power to terminate the application for a prospecting licence under s 111A, Wyloo Metals has the right to have its applications considered by a mining registrar or warden under s 42 of the 1978 Act. Section 43 of the 1978 Act does not operate to preclude the grant of a prospecting licence on the basis that the Subject Land was already subject to a mining tenement.
The justiciable controversy to be resolved by the primary proceedings was raised by the parties' assertion of inconsistent rights in relation to the mining on the Subject Land. Quarry Park and Cauldron Energy asserted rights said to arise from the grant or purported grant of the Mining Lease including the exclusive rights to mine the land conferred by s 85 of the 1978 Act. Wyloo Metals asserted the right to apply for a prospecting licence over the Subject Land and to have that application considered by a mining registrar or warden in accordance with the 1978 Act. I have concluded that, as a matter of law, Wyloo Metals has the right it asserted and Quarry Park and Cauldron Energy do not have the rights they asserted.
In determining whether Wyloo Metals should nevertheless be denied the discretionary relief it sought, it was necessary to bring into account the impact of refusing relief on the rights which Wyloo Metals has established. The fact that Wyloo Metals had the right to apply for a prospecting licence and has the right to have that application properly considered in accordance with the 1978 Act must be taken into account in deciding to refuse relief which would recognise those rights. The fact that the registration of the transfer of the Mining Lease to Cauldron Energy would, by operation of s 116(2) of the 1978 Act, effectively extinguish Wyloo Metals' existing rights is also a consideration which a proper exercise of the discretion should take into account. Registration of a transfer to Cauldron Energy would likely follow from the refusal of declaratory relief by the court.
The fact that Wyloo Metals was seeking relief recognising the rights which it had also affects the way in which the issue of delay must be considered. While Wyloo Metals might have discovered the deficiency in the title to the Mining Lease at any time, the mere discovery of that fact would not have elevated its interest in the matter beyond that of any member of the public so as to give it standing to seek curial relief.[142] The justiciable controversy in this case, and standing to challenge the validity of the Mining Lease, arose only when Wyloo Metals resolved to apply for a prospecting licence over the Subject Land, asserting rights which were inconsistent with those purportedly granted by the Mining Lease. There was no time limit imposed on Wyloo Metals making an application for a prospecting licence over that land. It could do so at any time at which the Subject Land had the status of Crown land open for mining. Wyloo Metals acted promptly to seek declaratory relief on 22 January 2021 shortly after it had applied for a prospecting licence on 11 January 2021.
The primary judge's contrary approach involved an error of principle which requires this court to re-exercise the discretion. Grounds 3 and 6 are established to the above extent, which requires me to consider for myself the manner in which the discretion should be exercised. It is unnecessary to otherwise resolve grounds 3 - 7.
I see no justification for denying Wyloo Metals declaratory relief in support of the rights which it has established in these proceedings. As I have noted, Wyloo Metals acted promptly and without delay in seeking curial relief after it applied for a prospecting licence. Wyloo Metals was entitled to apply for a prospecting licence at any time that the Subject Land was Crown land open for mining. By virtue of the invalidity of the Mining Lease, the Subject Land was Crown land open for mining at the time Wyloo Metals' applications for a prospecting licence were lodged. There was no delay by Wyloo Metals that would justify a discretionary refusal to grant relief. To the extent that Cauldron Energy has expended funds in reliance on the existence of the Mining Lease, it was (as the primary judge recognised) the author of its own misfortune in failing to comply with the statutory preconditions for the grant of a valid mining tenement. On the other hand, Wyloo Metals exercised the statutory right which it had to apply for a prospecting licence and had not engaged in any conduct which disentitled it from that right.
Unlike the primary judge, I would give little weight to the consideration that the grant of relief might 'undermine the confidence of those involved in the resources industry in the security offered by title to mining tenements'.[143] From the establishment of the Constitution of the State it has been fundamental that the management of Crown land and mines and minerals thereon is vested in the legislature.[144] No effective grant of rights to exploit the mineral resources of the State may be made except in the manner Parliament has authorised.[145] The Mining Lease was purportedly granted in a manner which Parliament did not authorise. The 1978 Act makes no provision for security of that title prior to the registration of a transfer or mortgage which engages the second clause of s 116(2) of that Act. The terms of the 1978 Act do not disclose a statutory purpose of securing the title of persons who have directly received a purported grant of a mining tenement which the 1978 Act did not authorise.
Having regard to these matters, I would exercise the court's discretion to declare that the Mining Lease is invalid and that the Subject Land was Crown land open for mining at the time of Wyloo Metals' applications for a prospecting licence.
Wyloo Metals seeks a permanent injunction restraining Quarry Park and Cauldron Energy from executing or lodging any transfer of the Mining Lease.[146] It is not clear to me on what basis the court would impose such a restraint, apart from preserving the subject matter of the appeal pending its determination as was done by the interim injunction. Quarry Park would not be acting unlawfully by executing and lodging a transfer even if the Mining Lease was invalid. It seems to me that, if any restraint were to be imposed, it should be directed to what the Minister and Department should do with a transfer if it were lodged for registration. But that is not the order that Wyloo Metals seeks.
It is unnecessary to finally resolve the issues averted to in the previous paragraph. Once that declaratory relief is granted, it does not appear to me to be necessary to grant injunctive relief preventing the registration of the transfer of the Mining Lease to Cauldron Energy. Counsel for the State informed the court that, if a declaration of invalidity is made, the Register will be amended by the Director General of the Department under s 103F or an authorised officer under s 103G and any transfer lodged for registration will be rejected under s 103D(1)(b) of the 1978 Act.[147] That is the appropriate course for the Department to take once a declaration of invalidity is made. In that way, the grant of declaratory relief will be sufficient to protect Wyloo Metals' interests.
The appeal having been determined, the interlocutory injunctions granted by the primary judge on 27 January 2021 and by me on 9 November 2021 should be discharged.

For the above reasons, I would:
1. allow the appeal;
2. set aside the primary orders made on 22 October 2021;
3. substitute a declaration that the Mining Lease is invalid and that the Subject Land was Crown land open for mining at the time of Wyloo Metals' applications for a prospecting licence; and
4. discharge the interim injunction granted by this court on 9 November 2021 and the interlocutory injunction granted by the primary judge on 27 January 2021.

I would hear from the parties as to the precise form of these orders, and as to the costs of the appeal and of the primary proceedings.

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

[1] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [67], [70] ‑ [71] (Kiefel CJ, Bell, Gageler & Keane JJ).

[2] Onslow Resources Ltd v Johnston [2021] WASCA 151 [48] ‑ [50] (Quinlan CJ, Buss P and Beech JA).

[3] Onslow Resources Ltd v Johnston [2020] WASC 310.

[4] Great Hannans Aurora GM Co v Barnes [1898] WALawRp 4; (1898) 1 WALR 1.

[5] McDermott v The Registrar of Mines [1905] WALawRp 37; (1905) 7 WALR 270.

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

[7] Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1 [42].

[8] Breskvar v Wall [1971] HCA 70; (1971) 126 CLR 376, 385 (Barwick CJ).

[9] Conlan v Registrar of Titles [2001] WASC 201; (2001) 24 WAR 299 [159] (Owen J).

[10] Finesky Holdings Pty Ltd v Minister for Transport (WA) [2002] WASCA 206; (2002) 26 WAR 368, 378 (Steytler J).

[11] Sorna Pty Ltd v Flint [2000] WASCA 22; (2000) 21 WAR 563.

[12] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ).

[13] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).

[14] Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 [82] (Crennan & Bell JJ).

[15] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14] (Kiefel CJ, Nettle & Gordon JJ).

[16] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).

[17] Mondelez Australia Pty Ltd v The Australian Manufacturing Workers Union (AMWU) [2020] HCA 29; (2020) 271 CLR 495 [13] (Kiefel CJ, Nettle & Gordon JJ).

[18] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ).

[19] Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247 [121] (Kiefel & Keane JJ).

[20] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J).

[21] Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).

[22] ENT19 v Minister for Home Affairs [2023] HCA 18; (2023) 97 ALJR 509 [87].

[23] Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235 (Dawson J).

[24] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [103] (McHugh J).

[25] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 [12] (McHugh J).

[26] TEC Desert Pty Ltd v Commissioner of State Taxation (WA) [2010] HCA 49; (2010) 241 CLR 576 [32] (French CJ, Gummow, Heydon, Crennan & Kiefel JJ).

[27] Crocker Consolidated Pty Ltd v Wille [1988] WAR 187.

[28] Atkins v Minister for Mines (1996) 15 WAR 226.

[29] Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520, 533 (Lord Wilberforce delivering the advice of Privy Council).

[30] The State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 [167] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[31] Nicholas v The State of Western Australia [1972] WAR 168, 172 (Jackson CJ; Virtue SPJ agreeing), 174 (Burt J).

[32] Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 272 CLR 33 [56] (Kiefel CJ, Bell, Gageler & Keane JJ).

[33] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 [24] (Kiefel CJ, Gageler & Keane JJ).

[34] Duperouzel v Cameron [1973] WAR 181.

[35] Transport Accident Commission v Treloar [1992] VicRp 31; [1992] 1 VR 447, 449 (McGarvie & Gobbo JJ).

[36] Betella v O'Leary [2001] WASCA 266 [13] (Burchett AUJ; Wallwork & Wheeler JJ agreeing).

[37] Brown v Brook [1971] HCA 30; (1971) 125 CLR 275, 276 (Barwick CJ), 292 (Walsh J).

[38] Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104, 108 (Mahoney JA).

[39] Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211; (2014) 48 WAR 300 [119] (Buss JA; Newnes JA agreeing).

[40] Gibbs v Messer [1891] UKLawRpAC 2; [1891] AC 248, 254.

[42] Solicitor‑General v Mere Tini [1899] NZGazLawRp 111; (1899) 17 NZLR 773.

[43] The Baker's Creek Consolidated Gold Mining Co v Hack (1894) 15 NSWLR (Eq) 207.

[45] Templeton v The Leviathan Pty Ltd [1921] HCA 55; (1921) 30 CLR 34.

[47] Abigail v Lapin [1934] AC 491.

[49] IAC (Finance) Pty Ltd v Courtenay [1963] HCA 64; (1963) 110 CLR 550.

[50] Jonray (Sydney) Pty Ltd v Partridge Bros Pty Ltd [1969] 1 NSWR 621.

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

[53] Leros Pty Ltd v Terara Pty Ltd [1992] HCA 22; (1992) 174 CLR 407.

[54] Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817; (2000) 105 FCR 39 [24] ‑ [28] (Heerey, Moore & Goldberg JJ).

[55] Klewer v Attorney General (NSW) [2010] NSWCA 219 [18] ‑ [21] (McColl & Campbell JJA & Sackville AJA).

[56] Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95 [121] (Sackville AJA; McColl & Basten JJA agreeing).

[57] The State of Western Australia v Stocker [2022] WASCA 178 [40] (Buss P).

[58] Telstra Corporation Ltd v Treloar [2000] FCA 1170; (2000) 102 FCR 595 [23] (Branson & Finkelstein JJ).

[59] Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [134], [158] (Gleeson CJ, Gummow, Callinan, Heydon & Crennan JJ).

[60] Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24 [25] ‑ [26] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward & Gleeson JJ).

[61] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.

[62] ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 [72] (Nettle J), [110] (Gordon J).

[63] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 [89] (Gordon & Steward JJ).

[64] Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406, 446 (Mason & Deane JJ).

[65] Stern v McArthur [1988] HCA 51; (1988) 165 CLR 489, 521 ‑ 523 (Deane & Dawson JJ).

[66] Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242, 252 (Mason CJ, Brennan, Deane & McHugh JJ).

[67] Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2003) 217 CLR 315 [53] ‑ [56] (Gleeson CJ, McHugh, Gummow, Hayne & Heydon JJ).

[68] Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2021] WASC 356 (Primary decision) [6].

[75] Primary decision [158] - [159].

[76] Onslow Resources Ltd v Johnston [2020] WASC 310.

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

[81] Order made in the primary proceedings on 27 January 2021; Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2021] WASC 30.

[82] Prayer for relief in the Plaintiff's Statement of Claim (Blue AB 96 - 97).

[84] Onslow Resources Ltd v Minster for Mines and Petroleum [2021] WASCA 151.

[86] Although the Minister reserved the right to challenge the correctness of the decision in Forrest & Forrest should the matter proceed further: see appeal ts 181.

[87] Breskvar v Wall (1971) 126 CLR 376, 385 - 386.

[88] Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132; (2010) 41 WAR 134 [20].

[89] Walker v The State of Western Australia [2002] FCA 869; (2002) 191 ALR 654 [19]; Sorna Pty Ltd v Flint [2000] WASCA 22; (2000) 21 WAR 563 [37]; Atkins v Minister for Mines (1996) 15 WAR 226, 232 (Rowland J).

[90] The State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 [21] - [22], quoting Wade HWR, 'Unlawful Administrative Action: Void or Voidable?' (1967) 83(4) Law Quarterly Review 499, 512.

[92] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 [91].

[93] Which relevantly provided that the warden shall not hear the application for a mining lease unless the warden has received a copy of the section 74A report in relation to the application.

[96] Forrest & Forrest [57] - [58].

[97] Forrest & Forrest [62], citing Project Blue Sky [97] - [98].

[104] Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24 [25]; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [134].

[106] Baker's Creek Gold Mining Co v Hack (1894) 15 LR (NSW) eq 207.

[107] Baker's Creek Gold Mining Co (223 - 225). The judgment of Owen CJ in Eq was affirmed on appeal to the Full Court of the Supreme Court of NSW which affirmed the judgment without addressing the operation of s 111 of the Real Property Act: see (228 - 232).

[108] Templeton v The Leviathan Pty Ltd [1921] HCA 55; (1921) 30 CLR 34, 54 - 55, 70.

[109] Lapin v Abigail [1930] HCA 6; (1930) 44 CLR 166, 182, 188, 196, 203 - 204. The Privy Council found it unnecessary to deal with the question in Abigail v Lapin [1934] AC 491, 509.

[110] IAC (Finance) Pty Ltd v Courtenay [1963] HCA 64; (1963) 110 CLR 550, 572, 581 - 582.

[111] Templeton 55 (Knox CJ); Lapin v Abigail 203 (Dixon J); IAC (Finance) 582 (Taylor J).

[112] Frazer v Walker [1967] 1 AC 569, 579 - 583.

[113] See especially Breskvar v Wall (384 ‑ 386).

[114] Breskvar 388 - 389 (Barwick CJ, Windeyer and Owen JJ agreeing), 393 - 394 (McTiernan J), 399 (Menzies J), 409 - 410 (Walsh J), 413 (Gibbs J).

[115] TEC Desert Pty Ltd v Commissioner of State Revenue (WA) [2010] HCA 49; (2010) 241 CLR 576.

[116] At the time of the enactment of the 1978 Act, this provision was contained in s 53 of the TLA.

[117] See Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26; (2021) 274 CLR 177 [10] - [17], [51] - [52].

[118] See, for example, the discussion in Bridge et al, The Law of Personal Property (3rd ed, 2022) esp [31-002] - [31-004].

[119] As to which see B Edgeworth, Butt's Land Law (7th ed, 2017) [12.30] - [12.50].

[120] See J D Heydon et al, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (5th ed, 2015) [8-240] - [8-280].

[121] See, for example, Rice v Rice (1853) 2 Drewry 73; [1853] EngR 1102; 61 ER 646, 648; Abigail v Lapin (501 - 504); Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) [1965] HCA 17; (1965) 113 CLR 265, 276; Heid v Reliance Finance Corp Pty Ltd (1983) 154 CLR 326, 333 (Gibbs CJ, Wilson J agreeing), 339 - 341 (Mason and Deane JJ).

[122] See Courtenay v Austin (1961) 78 WN (NSW) 1082, 1097; Taddeo v Catalano (1975) 11 SASR 492, 498 - 501; Moffett v Dillon [1999] VSCA 32; [1999] 2 VR 480, 485 - 491 (Brooking JA), 506 (Buchanan JA) 501 - 506 (Ormiston JA); Performance Capital Mortgage Pty Ltd v Motive Finance & Leasing Pty Ltd [2010] NSWSC 429 [37] - [38]; Dixon v Barton [2011] NSWSC 1525 [155]; Meadow Springs Fairway Resort Ltd (in liq) v Balanced Securities Ltd (No 2) [2008] FCA 471; (2008) 245 ALR 726 [105] - [107].

[125] Dearle v Hall (1828) 3 Russ 1; 38 ER 475, discussed in J D Heydon et al, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (5th ed, 2015) [8-095] - [8-215].

[126] See the chapeau to s 8(1) of the 1978 Act and s 3(1) of the Interpretation Act 1984 (WA).

[127] Commissioner of State Revenue v Abbotts Exploration Pty Ltd [2014] WASCA 211; (2014) 48 WAR 300 [117] - [119].

[128] See Abbotts Exploration [120] - [127].

[129] Primary decision [47] - [48].

[131] See Federal Commissioner of Taxation v Apted [2021] FCAFC 45; (2021) 284 FCR 93 [80] (Thawley J, Allsop CJ agreeing).

[132] Primary decision [51] - [52].

[134] Section 34 of the Mining Amendment Act 2012 (WA).

[136] I note that there is no challenge to the primary judge's conclusion at primary decision [186] - [188] that, even if the Mining Lease was invalid, the Subject Land was not Crown land open for mining on the basis that it was subject to an exploration licence.

[142] See Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493, 526 - 528 (Gibbs J), 537 - 538 (Stephen J), 547 - 548 (Mason J).

[144] Nicholas v The State of Western Australia [1972] WAR 168, 172 (Jackson CJ, Virtue SPJ agreeing), 174 (Burt J).

[146] Amended orders wanted, par 2(g).

[147] Third respondent's supplementary submissions, par 46.

Goldfields Act 1895(WA)

Mining Amendment Act 1985(WA)

Mining Amendment Act 1996(WA)

Acts Amendment (Mining) Act 1981(WA)

Mining Amendment Act 2012(WA)

Real Property Act 1862(NSW)

Transfer of Land Amendment Act 1950(WA)

Conveyancing Act 1881

Law of Property Act 1925

Land Transfer Act 1885

Land Transfer Act 1985

Section 116(2) was not cast in terms which were apt to confer indefeasibility of title in respect of any non‑compliance with the requirements of the Act. Unlike s 75(6)(b), s 116(2) did not speak of a want of 'compliance' with the provisions of the Act, but of 'informality or irregularity' in the application or proceedings. 'Informality' means a want of legal form as distinct from a want of legal substance. The term 'irregularity' refers to a lack of regularity in the method or manner in which a power is exercised (Davis's Tutor v Glasgow Victoria Hospitals 1950 SC 382 at 385; M'Ginty v Glasgow Victoria Hospitals 1951 SC 200 at 211): it is a term used in deliberate contrast to an act beyond power. The failure of the warden to observe the requirement of s 75(4a) cannot fairly be described as an 'informality or irregularity in the application or in the proceedings previous to the grant' of the mining lease.

The concern of the Court of Appeal that upsetting titles to mining leases might cause unintended hardship was misplaced. To the extent that the titles of the second and fourth respondents were liable to be set aside, it may be said that they were the authors of their own misfortune. And as to those who took a transfer of a mining lease from them, such transferees would be protected by the second clause of s 116(2). In Hunter Resources Ltd v Melville ((1988) [1988] HCA 5; 164 CLR 234 at 259), 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.'

The context of the words, consideration of the consequences of adopting a provision's literal meaning, the purpose of the statute and principles of construction may lead a court to adopt a construction that departs from the literal meaning of the words of a provision (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 at 384 [78]). One such principle is that legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals (Project Blue Sky [1998] HCA 35; (1998) 194 CLR 355 at 381 ‑ 382 [70]). As expressed by Gageler J in SAS Trustee Corporation v Miles, 'statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means' ( [2018] HCA 55; (2018) 265 CLR 137 at 157 [41] (footnotes omitted)). Where conflict appears to arise in construing an Act, 'the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions', and this 'will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other"' (Project Blue Sky [1998] HCA 35; (1998) 194 CLR 355 at 382 [70], quoting Institute of Patent Agents v Lockwood [1894] UKLawRpAC 38; [1894] AC 347 at 360). Ultimately, the task in applying the accepted principles of statutory construction is to discern what Parliament is to be taken to have intended (Project Blue Sky [1998] HCA 35; (1998) 194 CLR 355 at 384 [78]. See also Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 at 455 ‑ 456 [28]; Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 266 CLR 428 at 460-461 [76]).

It is also not without relevance that mining projects in Western Australia are frequently of a type and scale that involve the investment of vast amounts of money and both human and mechanical resources, and are financed by loans secured on the faith of the title comprised of the mining lease by mortgage in accordance with reg 77 of the Mining Regulations. The second part of s 116(2) of the Mining Act may be adequate to hold a registered mortgagee safe against claims on the mining lease made by previous holders and the holders of unregistered interests. But, in terms, it says nothing about defects in the lease resulting from irregularities in the application or proceedings previous to the grant of the lease. Accordingly, if strict compliance with the requirements of s 74(1)(ca)(ii) were a condition precedent to the power of the Minister to grant a mining lease ‑ with the result that the first part of s 116(2) was incapable of protecting a mining lease once issued against impeachment on the basis of failure by the applicant to comply with those requirements and the subsequent failure by the mining registrar or warden to comply with the provisions governing the exercise of their power ‑ it may be that a mortgage of such a mining lease would be a mortgage over nothing (Hunt, Mining Law in Western Australia, 4th ed (2009), pp 278 ‑ 279. See also Domansky, 'Dealings and Registration' [2001] AUMPLawJl 20; (2001) 20 Australian Mining and Petroleum Law Journal 36 at 38; cf Skead, 'The Registration and Caveat Systems under the Mining Act 1978 (WA): A Torrens Clone?' (2007) 26 Australian Resources and Energy Law Journal 185 at 192 ‑ 193). One assumes that financiers have proceeded until now upon the assumption, supported by Mason CJ, Gaudron and Wilson JJ's construction of s 116(2) in Hunter Resources and the Full Court of the Supreme Court of Western Australia's decision in Crocker Consolidated Pty Ltd v Wille ( [1988] WAR 187 at 191 per Burt CJ (Olney J agreeing at 191)), that a mining lease cannot be impeached on account of such defects. In the absence of compelling reasons to do so, I do not consider that it should be concluded that s 116(2) lacks that effect (See and compare Yarri [2010] WASCA 132; (2010) 41 WAR 134 at 145 [53] ‑ [56] per McLure P (Owen JA and Buss JA agreeing at 147 [73], [74]).

So to reason does not mean that s 116(2) is a licence to ignore the requirements of the Mining Act. It remains that, until and unless a mining lease is granted, failure to comply with the requirements of the Mining Act relating to the grant of a lease will provide a basis for objection, judicial review and appropriate remedies to ensure compliance (See Hot Holdings [1996] HCA 44; (1996) 185 CLR 149 at 174 ‑ 175 per Brennan CJ, Gaudron and Gummow JJ). What it does mean, however, is that, if no effort is made to restrain the grant of a mining lease before the lease is granted, it will then be too late to impeach the lease on the basis of failure to comply with those requirements. It is consistent with the order and certainty of title that s 116(2) is designed to achieve that such attacks must be made, if at all, before grant.

By a line of cases it is settled that sec. 43 of the Real Property Act 1900 does not give protection to a person who deals with a registered proprietor unless and until his dealing is registered (see Cowell v. Stacey [1887] VicLawRp 18; (1887) 13 V.L.R. 80; Bakers Creek Consolidated Gold Mining Co. v. Hack (1894) 15 N.S.W.L.R. (Eq.) 207, at p. 222; Templeton v. Leviathan Pty. Ltd. [1921] HCA 55; (1921) 30 C.L.R. 34, and particularly at p. 54, per Knox C.J.). Indeed, sec. 43 is expressed in terms which appear appropriate only to the protection of a legal estate or interest, and no legal estate or interest passes until registration.

The best known doctrine of equity regarding the effect of notice on priorities concerns the bona fide purchaser for value of the legal estate. It is often said that the doctrine of notice does not apply as between purchasers of equitable interests. See, for example, Garrow's Law of Real Property, 5th ed., (1961), p. 172; Helmore, The Law of Real Property in New South Wales, 2nd ed., (1966), p. 507; Leake on Property in Land, 2nd ed., (1909), p. 354; Ashburner's Principles of Equity, 2nd ed., (1933), pp. 55 ‑ 6; Underhill & Hayton, Law Relating to Trusts and Trustees, 15th ed., (1995), p. 931. But this means only that the rule that a bona fide purchaser for value without notice of a prior equity takes free from it is confined to purchasers of the legal estate and does not extend to purchasers of an equity. As Professor Butt points out (Land Law, 3rd ed., (1996), para. 1936), the absence of a 'purchaser for value without notice' doctrine for competing equitable interests does not mean that the fact of notice cannot be fatal where the competition is not between prior equity and subsequent legal estate but between two equities. The decisions and judicial dicta referred to above recognise the deeply rooted rule or principle that a person taking with notice of an equity takes subject to it, since his conscience is affected by the equity of which he had notice: Pilcher v. Rawlins [1872] UKLawRpCh 13; (1872) LR 7 Ch App 259; Midland Bank Trust Co. Ltd. v. Green [1980] UKHL 7; [1981] AC 513 at 528 per Lord Wilberforce. The rule applies whether the estate or interest taken by the purchaser is legal or equitable and whether the equity held by a third person in relation to the same subject matter does or does not amount to an equitable interest according to the distinction that has been drawn between 'mere equities' and equitable interests. The rule is illustrated, as regards the taking of an equitable interest with notice of a pre-existing one, by the early case of Willoughby v. Willoughby [1787] EngR 12; (1787) 1 TR 763; 99 ER 1366. There Lord Hardwicke L.C. said that it was against conscience that an equitable mortgagee who had taken with notice of a prior equitable interest should assert that his mortgage was entitled to priority. Lord Eldon determined without hesitation that a purchaser with notice of a vendor's lien was affected by it: Mackreth v. Symmons [1808] EngR 393; (1808) 15 Ves Jun 329 at 341; [1808] EngR 393; 33 ER 778 at 783. The decision is cited in Dart, Treatise on the law and practice relating to Vendors & Purchasers of Real Estate, 6th ed., (1888), p 825. The rule operates to prevent the overreaching of what has been described as a 'mere equity': such an equity will prevail against a subsequent purchaser of an equitable interest who had notice of the equity: Phillips v. Phillips [1861] EngR 1044; (1861) 4 De GF & J 208 at 217; [1861] EngR 1044; 45 ER 1164 at 1167; Cave v. Cave [1880] UKLawRpCh 119; (1880) 15 Ch D 639 at 646 ‑ 7; Westminster Bank Ltd. v. Lee [1956] Ch 7 at 18 ‑ 20; National Provincial Bank Ltd. v. Ainsworth [1965] UKHL 1; [1965] AC 1175 at 1237 ‑ 8 per Lord Upjohn (compare what Lord Wilberforce said at 1254); Megarry & Wade, Law of Real Property, 5th ed., (1984), pp 146 ‑ 7; Megarry (1955) 71 LQR 480 at 481 ‑ 2; Lewin on Trusts, 16th ed., (1964), p 598; Pomeroy's Equity Jurisprudence, 5th ed., (1941), para 688 ('with notice of any existing equitable estate, interest, claim, or right, in or to the same subject-matter, held by a third person'; at the end of the paragraph the example is given of an equity to have a mistake in an instrument corrected).

The following observations of Lord Browne‑Wilkinson, speaking in effect for the House of Lords in Barclays Bank Plc v. O'Brien [1993] UKHL 6; [1994] 1 AC 180 at 195, are noteworthy for their breadth:

What then are the consequences of a finding that a decision is affected by jurisdictional error? The decision is properly to be regarded as no decision at all (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 614 ‑ 615 [51], 616 [53]. See also Craig [1995] HCA 58; (1995) 184 CLR 163 at 179, quoted in Kirk (2010) 239 CLR 531 at 572 [67]). However, after jurisdictional error has been established, there are two possible further enquiries. The first is whether, as a matter of statutory construction, a purported decision affected by jurisdictional error may be treated as having had some legal effect until set aside (See Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 614 [50]). That, again, is an exercise in statutory construction. The question is whether the decision, although infected with error, has some legal consequence. The legal and factual consequences of the decision, if any, will depend upon the statute. ...

The second is whether to exercise the residual discretion to refuse relief, after jurisdictional error has been established, if no useful result could ensue (See Hossain [2018] HCA 34; (2018) 264 CLR 123 at 148 [74], quoting R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400. See also Hossain [2018] HCA 34; (2018) 264 CLR 123 at 138 [43]). The residual discretion to refuse relief entails a different and separate exercise from the identification of jurisdictional error. It looks to the utility of another hearing ( ; at 138 , 148 [74]), although it is not confined to being 'forward-looking'.

These two enquiries should not be confused with the anterior issue of whether breaches of a provision of a statute, expressly or impliedly, are to be treated as depriving the decision‑maker of power (Hossain [2018] HCA 34; (2018) 264 CLR 123 at 146 [67]) ‑ or, put in different terms, asking whether it 'was a purpose of the legislation that an act done in breach of the provision should be invalid' (Project Blue Sky [1998] HCA 35; (1998) 194 CLR 355 at 390 [93]). The division in approach between finding whether there was jurisdictional error, and, separately, considering the consequences that flow from a finding of jurisdictional error, is important. (original emphasis)

WYLOO METALS PTY LTD v QUARRY PARK PTY LTD

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