BETWEEN : YARRI MINING PTY LTD (ACN 120 304 261)

MINISTER FOR ENERGY, RESOURCES, INDUSTRY AND ENTERPRISE

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : YARRI MINING PTY LTD -v- EAGLEFIELD HOLDINGS PTY LTD [2009] WASC 125

Mining law - Statutory interpretation - Power to grant an exploration licence under s 57(1) of the Mining Act 1978 (WA) - Conflict or inconsistency between s 57(1) and s 69(1) - Consequences of a failure to comply with s 69(1) - Application of s 6 of the Crown Suits Act 1947 (WA) to the Minister and the Director General under the Mining Act

Broadcasting Services Act 1992 (Cth), s 122, s 160

Crown Suits Act 1947 (WA), s 3, s 6

Limitation Act 1935 (WA), s 47A

Limitation Amendment and Repeal Act 2005 (WA), s 8

Mining Act 1978 (WA), s 10, s 11, s 18, s 23, s 24, s 24A, s 25, s 27, s 29, s 40, s 52, s 56C, s 57, s 58, s 59, s 60, s 63A, s 69, s 70, s 70B, s 70D, s 70F, s 71, s 75, s 76, s 86, s 91, s 105, s 105A, s 105B, s 116, s 118, s 120, s 154

Second Respondent : Mr A S Bell SC & Mr L S Panotidis

Atkins v Minister for Mines (1996) 15 WAR 226

C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905; [1973] 2 All ER 513

Creasy v Hot Holdings Pty Ltd [2000] WASCA 206

Crocker Consolidated Pty Ltd v Wille [1988] WAR 187

Crouch v Commissioner for Railways (Qld) [1985] HCA 69; (1985) 159 CLR 22

David Grant & Co Pty Ltd (Receiver Appointed) v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265

Harding v Coburn (1976) 2 NZLR 577

Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149

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

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175

Tasker v Fullwood [1978] 1 NSWLR 20

Western Australia v Watson [1990] WAR 248

1 McLURE P: The appellant appeals from the order made by Le Miere J on 14 May 2009 dismissing its claim for a declaration that exploration licences granted to the first respondent (Eaglefield) by the third respondent (the Minister) are nullities. The primary issue in the appeal is the consequence of a contravention of s 69 of the Mining Act 1978 (WA) (the Act).

2 Section 69 provided at the relevant time that when an exploration licence is surrendered, the person who was the holder of the licence immediately prior to the date of the surrender (the former holder) or persons acting on his behalf shall not apply for an exploration licence over the land the subject of the surrendered licence within three months from the date of surrender.

3 On 11 July 2000, the second respondent (Narnoo) surrendered exploration licence 39/824 (E39/824). Narnoo was the former holder of E39/824 for the purposes of s 69. E39/824 was over land the subject of the following graticular blocks: 1700A, 1700B, 1700J, 1700O, 1700P, BJOP, 1773K and 1774L (the overlapping area).

4 On 10 August 2000, Eaglefield, on behalf of Narnoo, lodged two applications for exploration licences (ELA39/876 and ELA39/877). ELA39/876 was over land that included (but was not confined to) graticular blocks 1700A and 1700B. ELA39/877 was over land that included (but was not confined to) graticular blocks 1700J, 1700O, 1700P, 1773K and 1774L. Thus, both ELA39/876 and ELA39/877 were over land that included part of the overlapping area.

5 On 28 February 2003, the Minister granted to Eaglefield exploration licences E39/876 and E39/877 for the whole of the areas applied for, including parts of the overlapping area.

6 In May 2007, Energy and Minerals Australia Ltd (EMA) acquired all the issued capital in Narnoo. On 19 March 2008, Eaglefield transferred exploration licences E39/876 and E39/877 to Narnoo. In April 2008 EMA made a public offering to raise funds from investors. EMA was subsequently listed on the Australian Stock Exchange.

7 The appellant was incorporated in July 2006. In July and August 2008 it applied for exploration licences over land the subject of E39/876 and E39/877.

8 The Minister and the fourth respondent (Director General) did not participate at trial or in the appeal. They abide the decision of the court, save as to costs.

9 Section 69 of the Act was amended after exploration licences E39/876 and E39/877 were granted to Eaglefield. The parties have conducted this litigation on the basis that the applicable law is s 69 as it was when Eaglefield lodged the applications in August 2000. Section 69 relevantly provided:

(1) When an exploration licence is surrendered or forfeited, or expires, or any part of the land the subject of the licence is relinquished in accordance with section 65, the land the subject of the licence or the part so relinquished shall not be marked out or applied for as a prospecting licence or an exploration licence by or on behalf of the person who was the holder of the exploration licence immediately prior to the date of the surrender, forfeiture or expiry or relinquishment ... within a period of 3 months from and including that date.

10 Thus s 69(1) prohibits a specified person (the former holder) from making an application for an exploration licence.

11 Exploration licences are dealt with in pt IV div 2 of the Act. There were no material amendments to the following provisions of the Act from the time Eaglefield lodged the applications in August 2000 to the grant of the exploration licences in February 2003. For the purposes of pt IV div 2, the land surface is divided into graticular sections that constitute a 'block' (s 56C).

12 The power to grant an exploration licence is conferred on the Minister by s 57 of the Act. Section 57 relevantly provides:

(1) Subject to this Act the Minister may on the application of any person and after receiving a recommendation of the mining registrar or the warden in accordance with section 59, grant to that person a licence to be known as an exploration licence on such terms and conditions as the Minister may determine.

(2) The area of land in respect of which an exploration licence may be granted shall be a block or blocks but shall not be more than 70 blocks.

...

(4) Where in any particular area extensive mining is being carried on, the Minister may, from time to time, by notice published in the Government Gazette declare that no application for an exploration licence shall be made or granted with respect to any land comprising the area or any land within such area as is specified in the notice.

13 In Atkins v Minister for Mines (1996) 15 WAR 226, Rowland J held that the Minister did not have the power to grant an exploration licence over land which was the subject of a notice issued under s 57(4).

14 Section 58 deals with the requirements for an application for an exploration licence. It relevantly provides:

(a) shall be in the prescribed form;

(b) shall be accompanied by a statement specifying -

(i) the proposed method of exploration of the area in respect of which the licence is sought;

(ii) the details of the programme of work proposed to be carried out in such area;

(iii) the estimated amount of money proposed to be expended on the exploration; and

(iv) the technical and financial resources available to the applicant;

(c) shall be accompanied by the amount of the prescribed rent for the first year of the term of the licence or portion thereof as prescribed;

(d) ...

(e) ...

(1a) In order to facilitate the operation of section 105A(3) and (4)(a) in relation to applications for exploration licences in respect of an area that are made at the first available opportunity after that area has been surrendered under section 65 or has become forfeited under section 96A or 97, those applications shall be made in accordance with a prescribed procedure and shall be regarded as having been lodged at a time determined in accordance with the regulations.

15 Section 105A deals with priorities between applicants for mining tenements. It relevantly provides that where more than one application is received for a mining tenement in respect of the same land or any part thereof, the applicant who first complied with the initial requirement in relation to his application has, subject to the Act, the right in priority over every other applicant to have granted to him in respect of that land the mining tenement to which the application relates: s 105A(1). In the case of an exploration licence, compliance with the initial requirement is a reference to the person who first lodges an application at the office of the mining registrar: s 105A(4)(a).

The grant of a mining tenement shall be deemed to have been made subject to a condition that the land applied for is found to have been available for the purposes of that grant after a survey has been made of the tenement.

17 Section 59 provides for the determination of applications for an exploration licence. Provision is made for persons to object to the grant of such a licence: s 59(1). Where no objection is lodged, the mining registrar must forward to the Minister a report which recommends the grant or refusal of the licence: s 59(2). The mining registrar is obliged to recommend the grant of the exploration licence if satisfied that the applicant has complied in all respects with the provisions of the Act or recommends the refusal of the application if not so satisfied: s 59(3). Where a notice of objection is lodged, the warden is required to hear the application for the exploration licence and give the person who lodged the notice of objection an opportunity to be heard: s 59(4). After the hearing the warden is required to forward a report to the Minister with a recommendation: s 59(5). Section 59(6) is relied on by Eaglefield and Narnoo. It provides:

(6) On receipt of a report under subsection (2) or (5), the Minister may grant or refuse the exploration licence as the Minister thinks fit, and irrespective of whether -

(a) the report recommends the grant or refusal of the exploration licence; and

(b) the applicant has or has not complied in all respects with the provisions of this Act.

18 There is an equivalent provision for mining leases (s 75(6)).

19 Reliance was also placed on s 116(2) of the Act which relevantly provides:

(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 applicant, or 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.

20 Section 116(2) has two limbs. The first prevents impeachment or defeasance on account of any informality or irregularity and the second protects persons dealing with the registered holder of a mining tenement. However, unlike the Torrens system, the Act does not provide for title by registration. It provides for a system of registration of title. At the relevant time, the requirement for registration of mining tenements was contained in the regulations (reg 106).

21 The trial judge held that an application filed in breach of s 69 of the Act did not result in the invalidity of the exploration licence granted upon such an application. He primarily relied on two indicators of legislative intent, being what he identified as the far-reaching and undesirable consequences of treating a breach as invalidating a subsequent grant of an exploration licence and the existence of other penalties for a breach of s 69. He said:

Having regard to the transferability of exploration licences and the right of the holder of an exploration licence to obtain a mining lease covering any part of the land the subject of the exploration licence, if an exploration licence granted on an application made in breach of s 69 is invalid, it is likely to result in much inconvenience to those members of the public who have acted in reliance on the grant of the exploration licence and its entry on the register.

The unlikelihood that the parliament intended a breach of s 69 of the Act to result in invalidity of an exploration licence granted upon such an application is reinforced by provisions of the Act dealing with non-compliance with statutory requirements [40] - [41].

22 The trial judge held that a person who acts in contravention of s 69 commits an offence for which he is liable to a penalty under s 154 or forfeiture of the mining tenement under s 63A of the Act.

23 The trial judge also concluded that in the event a contravention of s 69 resulted in invalidity, the exploration licences would only be invalid to the extent that they covered land the subject of the prohibition in s 69 (that is, the overlapping area).

24 The appellant's alternative argument based on s 105B for the proposition that the overlapping area was not available for mining was also rejected.

25 Eaglefield and Narnoo claimed that even if s 69 invalidated all or part of the exploration licences, declaratory relief should not be granted to the appellant because relief could not be granted against the Minister and the Director General because the appellant had failed to comply with the requirements of either s 6 of the Crown Suits Act 1947 (WA) or s 47A of the Limitation Act 1935 (WA).

26 The trial judge concluded that the Minister and the Director General were the Crown for the purposes of the Crown Suits Act. As the appellant had failed to comply with the requirements of s 6, which denies the right not the remedy, the appellant had no cause of action against the Minister or the Director General. Notwithstanding that a declaration could not be made against the Minister and the Director General, the trial judge concluded he could make a declaration against Eaglefield and Narnoo.

27 The appellant contends the trial judge erred in law in holding that:

(1) the act of applying for an exploration licence in breach of s 69 does not invalidate the application and any subsequent grant;

(2) s 69 does not have the effect of making land unavailable, within the meaning of s 105B of the Act, for the grant of an exploration licence;

(3) the Minister and the Director General are the Crown for the purposes of s 6 of the Crown Suits Act and that the appellant had no cause of action against those respondents.

28 It is necessary to distinguish between a precondition to the existence of a power and a condition regulating the exercise of a power. The former is an essential preliminary or condition precedent to the exercise of the jurisdiction, authority or power to act; in this case, to grant an exploration licence. The failure to comply with a precondition to the existence of a power will invalidate an act done in purported exercise of that power.

29 Eaglefield and Narnoo conceded that if an application in compliance with s 69 is a precondition to the existence of the power to grant an exploration licence under s 57(1) of the Act, the grant of an exploration licence pursuant to an application prohibited by s 69(1) will be outside the scope of s 59(6) and s 116(2) of the Act and be invalid. These concessions are in line with authority: David Grant & Co Pty Ltd (Receiver Appointed) v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265, 279. Accordingly, the failure to comply with a precondition to the existence of a power under the Act must always result in invalidity. On the other hand, the failure to comply with a statutory requirement that is not a precondition to the existence of a power may (in the absence of any statutory provision to the contrary), but not must, result in invalidity.

30 Before addressing the issues, I propose to consider the relevant case law on the Act and the principles of statutory construction applicable in this area. The starting point is Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234. That case concerned an application for a prospecting licence under s 40 of the Act. Section 105(1) provided that before making an application for a mining tenement, the applicant shall mark out in the prescribed manner the land the subject of the application. The applicant's marking out did not comply in all respects with what was prescribed in the Mining Regulations that applied at the time. A majority of the High Court (Wilson, Dawson & Toohey JJ) upheld the warden's decision to refuse the application for a prospecting licence for non-compliance with the prescribed requirements for marking out.

31 Dawson J accepted that the warden's jurisdiction was not conditioned on the applicant complying with the prescribed marking out requirements (251). That conclusion is also implicit in the reasons of Wilson J who observed that if the licence had been granted, s 116(2) would have had the effect of protecting the prospecting licence from attack for failure to comply with the marking out requirements. The majority concluded that the requirement to mark out the land in the prescribed manner under s 105(1) was a mandatory requirement requiring strict compliance, substantial compliance being insufficient. In reaching the conclusion that the marking out requirement was mandatory, all members of the majority relied on s 105A which determines priorities between competing applicants for a tenement. Priority is accorded to the applicant who first complies with 'the initial requirement in relation to his application'. In the case of a prospecting licence, the initial requirement was the marking out of the land concerned in the prescribed manner.

32 The issue in Hunter Resources was whether the warden erred in refusing to grant an application for a prospecting licence for non-compliance with the marking out requirements. The issue in Crocker Consolidated Pty Ltd v Wille [1988] WAR 187, was whether failure to comply with the marking out requirements in s 105(1) of the Act invalidated prospecting licences that had already been granted under s 40 of the Act. Burt CJ (with whom Olney J agreed) held that although the marking out in the prescribed manner would establish priority as between competing applicants, it did not condition the warden's jurisdiction or power to grant the licence. Further, the majority held that the defective marking out was an 'irregularity' for the purposes of s 116(2) and thus the grant of the licences could not be impeached.

33 In Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 the High Court construed s 57(1) of the Act. The issue in that case was whether certiorari lay to challenge a warden's decision to conduct a ballot to determine the party entitled to priority under s 105A. A ballot was the procedure where two or more applicants complied with the initial requirement at the same time (s 105A(3)).

34 The High Court held that a recommendation of the mining registrar or the warden was a condition precedent to the exercise of the power to grant an exploration licence under s 57(1) of the Act. The court described s 59(4) as a supplemental indicator of the nature of the power in s 57(1). We are here concerned with the closely related question of whether 'the application of any person' is also a condition precedent to the exercise of the power in s 57(1).

35 A similar issue arose in Creasy v Hot Holdings Pty Ltd [2000] WASCA 206. In that case the appellants challenged the validity of the grant of an exploration licence on the basis that the applicant for the licence did not comply with s 118 of the Act. Section 118 provided that where any land comprised in an application for a mining tenement is held subject to a pastoral lease, the applicant shall post a copy of the application and location map to the holder of the lease. The applicant had not complied with s 118. The court held that the power in s 57(1) was not conditioned on compliance with s 118. Sheller AJ (with whom Wallwork & Steytler JJ agreed) said that to deny the power under s 57(1) in the case of non-compliance with s 118 would produce the considerable inconvenience of an applicant not proceeding to have its application dealt with on the merits but rather by means of lengthy litigation about whether s 118 had been complied with. Sheller AJ also relied on the absence of any express requirement in s 57(1) or s 59(4) that the applicant had to comply in all respects with the provisions of the Act. At the relevant time s 59(6)(b) was not part of the applicable statutory framework.

36 The primary judge (and the respondents) placed considerable reliance on Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. The issue in that case was whether a programme standard (cl 9) made by the respondent was invalid. Section 160 of the Broadcasting Services Act 1992 (Cth) required the respondent to perform its functions in a manner consistent with Australia's obligations under any convention to which Australia was a party or any agreement between Australia and a foreign country. The standard was made under s 122 of the Act. The court held that the power conferred by s 122 had to be exercised within the framework imposed by s 160 and thus s 122 prohibited the respondent from making a standard that was inconsistent with the requirements in s 160. The court held that cl 9 was inconsistent with an agreement between Australia and New Zealand and thus was in breach of s 122. However, the court concluded that the failure to comply with s 160 and the breach of s 122 did not mean cl 9 was invalid. The majority said:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition ...

Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person ... exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory [91] - [92]. (footnotes omitted)

37 The majority criticised the distinction between directory and mandatory requirements which they said deflected attention from the real issue which is whether an act done in breach of the legislative provision is invalid. They continued:

A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid ... In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute' [93]. (footnotes omitted)

38 The majority held that s 160 regulated the exercise of functions already conferred on the respondent rather than impose essential preliminaries to the exercise of its functions and that strongly indicated it was not a purpose of the Act that a breach of s 160 was intended to invalidate any act done in breach of that section [94].

39 Courts have always accepted that it is unlikely that it was a purpose of legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act [97]. Among the functions of the respondent was the grant of licences. The majority observed that it was hardly to be supposed that it was a purpose of the legislature that the validity of a licence allocated by the respondent should depend on whether or not a court ultimately ruled that the allocation of a licence was consistent with the matters falling within s 160.

40 The High Court in Project Blue Sky approved the approach taken by the New South Wales Court of Appeal in Tasker v Fullwood [1978] 1 NSWLR 20. The question in that case was whether a failure to comply with a statutory requirement deprived the Licensing Court of jurisdiction to grant a liquor licence. The legislation required the application for a licence to be accompanied by an agreement with a third party (the lessor of the relevant premises). The court identified the following propositions: (1) the problem is to be solved in the process of construing the relevant statute. Little, if any, assistance will be derived from the terms of other statutes; (2) the task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance; (3) the only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute; (4) the intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement; (5) it can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms.

41 The first question is whether 'the application of any person' is a precondition to the existence of the power in s 57(1) to grant an exploration licence. If the answer to that question is yes, the remaining questions are (1) what is meant by the expression 'the application of any person'; (2) is s 57(1) in conflict with s 69(1); and (3) is the power in s 57(1) subject to the prohibition in s 69(1).

42 The statutory indications in the language and framework of the Act point to a conclusion that an application is a precondition to the existence of the power to grant an exploration licence. The strongest indicator is the language and structure of s 57(1) itself. The power to grant an exploration licence is expressly conditioned on two matters, the first being an application by any person and the second being the receipt of a recommendation of the mining registrar or warden. The second matter has been held by the High Court in Hot Holdings to be a precondition to the existence of the power. I see nothing in the language of s 57(1) to distinguish the making of an application from the receipt of a recommendation.

43 The structure of s 57(1) is the same as that in the sections conferring power to grant a prospecting licence (s 40), a retention licence (s 70B), a mining lease (s 71) and general purpose lease (s 86). The right to make, and the making of, an application is an integral part of the statutory framework of the Act. That is demonstrated in s 18 which relevantly provides:

All Crown land, not being Crown land that is the subject of a mining tenement, is open for mining and as such is land -

(a) ...

(b) ...

(c) which may be made the subject of an application for a mining tenement,

subject to and in accordance with this Act.

44 Thus, where Crown land is open for mining there is, subject to and in accordance with the Act, a right to make an application for a mining tenement. The Act also grants a right to make an application for a mining tenement on reserved land (s 23, s 24, s 24A, s 25) and on private land (s 27(1)).

45 Further, the making of an application has significant consequences for priorities between competing applicants for a mining tenement on the same land: s 105A.

46 The language of s 57(1) and the statutory emphasis on, and consequence of, the right to make an application strongly indicate that the exercise of a person's right to make an application is a precondition to the existence of the power to grant an exploration licence.

47 Section 57(4) is not a contrary indicator. By that subsection, the Minister may declare that 'no application for an exploration licence shall be made or granted' with respect to any land the subject of a relevant notice. It may be thought that if an application for an exploration licence is a precondition to the existence of the power to grant an exploration licence, the prohibition against the grant of a licence would be otiose. However, the prohibition against any application or grant is to cover a situation where an application is lodged but not granted before the publication of the relevant notice.

48 The first and second respondents contend that the numerous provisions in the Act regulating the scope of the power to grant a mining tenement is a contrary indicator. The provisions relied on include s 29(2), s 52(3), s 70(6), s 70D(7), s 70F(3), s 76, s 91(6) and s 120(2). These provisions expressly limit the general power in s 40, s 57, s 70B, s 71 and s 86 to grant a mining tenement. For example, s 52(3) provides that a prospecting licence shall not be granted unless a security has been lodged by the appellant for the prospecting licence in accordance with the obligation to do in subs (1) of that section. There is an identical limitation on the power to grant an exploration licence in s 60(3). However, a limitation on the scope of a general power does not prevent a construction making the existence of the general power subject to a condition precedent. That conclusion is compelled by the High Court's decision in Hot Holdings.

49 The respondents also rely on s 59(6) and s 116(2) as indicating a general legislative intent to avoid the inconvenience and prejudice (to which I would add, uncertainty) resulting from mining tenements being invalid for non-compliance with the Act. These provisions do not support a conclusion that the legislature intended that there be no preconditions to the existence of the power to grant a mining tenement. First, those provisions do not apply where a precondition to the existence of a power has not been satisfied. Secondly, the submission is inconsistent with the decision of the High Court in Hot Holdings that the second matter in s 57(1) (the recommendation of a mining registrar or warden) is a precondition to the existence of the power. The same undesirable consequences would flow from a failure to comply with that condition. Thirdly, s 59(6) assumes that an application has been made.

50 The public inconvenience, prejudice and uncertainty resulting from invalidity and the existence of statutory penalties for a breach of the Act are powerful and weighty considerations where the statutory language and structure are equivocal or ambiguous. However, in this case the legislative intention is clear that the existence of the power to grant an exploration licence is conditioned on the exercise of the right to make an application. Such a conclusion is consistent with the relationship between s 57(1) and pt III of the Act. There can be no doubt that the power to grant an exploration licence in s 57(1) is confined to land open for mining in accordance with the provisions in pt III.

51 The next issue is the proper construction of the condition (that is, 'on the application of any person'). It cannot mean an 'application in accordance with the Act'. Such a construction is inconsistent with s 59(6)(b) and the first limb of s 116(2). So, for example, an application which does not comply with all the requirements of s 58(1) would remain an application for the purposes of the condition.

52 The condition refers to an application 'of any person'. That expression is wide enough to include a person who has lodged an application in breach of s 69(1). Section 57(1) commences with the words 'Subject to this Act'. This expression is the standard way of making clear which provision is to govern in the event of a conflict but throws no light on whether there would in truth be a conflict without it: Harding v Coburn (1976) 2 NZLR 577, 582; C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905; [1973] 2 All ER 513, 911.

53 Thus, the initial inquiry is whether there is a conflict or inconsistency between the requirement for an application from any person and the prohibition in s 69(1) of the Act. By way of aside, it is of no assistance to ask whether an application prohibited by s 69(1) is 'no application' for the purposes of s 57(1) (see David Grant (279)). That is merely the consequence of construing s 57(1) as requiring an application in accordance with the Act.

54 Section 69(1) prohibits a narrow class of persons (a former holder) from making an application for a prospecting or an exploration licence for a limited period. There is a respectable argument that there is a conflict between s 69 and s 57(1) as s 69 prohibits the making of an application for a grant yet that prohibited application would (ignoring the opening expression) satisfy an essential precondition to enlivening the power to grant. In the event of a conflict, s 57(1) would be subject to s 69(1) with the practical effect of confining the condition to 'the application of any person who has a right to make an application'.

55 The alternative construction is that the words 'of any person' in the first condition in s 57(1) expressly signify a legislative intent that an application in breach of s 69 is a permissible application for the purposes of s 57(1) and thus there is no conflict between the two sections, in which event the expression 'Subject to this Act' has no work to do. On balance I favour this construction of the condition for the following reasons.

56 First, this construction avoids the potential for very significant financial prejudice to innocent third parties (including investors) and undesirable uncertainty for persons dealing with registered tenement holders.

57 Secondly, if the express words 'any person' were read down to mean any person who has a right to make an application, the grant of a licence would be invalid regardless of the seriousness of the contravention of s 69(1). There would be no distinction between an application filed the day after the surrender and the day before the expiration of the three months period.

58 Thirdly, the purpose of the statutory moratorium is to give persons other than the former holder the opportunity to apply for a prospecting or exploration licence within the three month period. There may (as in this case) be no interest in the area until many years later.

59 Fourthly, a breach of s 69(1) would expose the former holder to liability to a penalty. I am satisfied that a breach of the prohibition in s 69(1) renders the applicant liable to a penalty under s 154(2) of the Act. Section 154 relevantly provides:

(1) A person who acts in contravention of or fails to comply in any respect with any provision of this Act commits an offence against this Act.

(2) A person who commits an offence against this Act for which no penalty is provided elsewhere than in this section is liable to a fine of $10 000 and if the offence is a continuing one, to a fine not exceeding $1 000 for every day or part of a day during which the offence has continued.

60 I have reservations about whether the exploration licences would be liable to forfeiture under s 63A of the Act. However, it is unnecessary to determine that question.

61 For these reasons I am satisfied that although an application is a precondition to the existence of the power in s 57(1), that condition is satisfied by the lodgement of an application in contravention of s 69(1). The conditions precedent being satisfied, the Minister had the power to grant an exploration licence over the overlapping area. Further, the failure to comply with s 69(1) falls within the scope of s 59(6)(b) and the first limb of s 116(2) with the consequence that the grant of both E39/876 and E39/877 is valid: Hunter Resources and Crocker Consolidated.

62 If I am wrong in that regard, any lack of power would be confined to the overlapping area in E39/876 and E39/877. Insofar as the applications for those exploration licences was over land other than the overlapping area, Eaglefield/Narnoo had the right to apply for an exploration licence in respect thereof and the Minister had the power to make the grant. Thus the exploration licences would only be invalid to the extent that they purport to cover the overlapping area. I would dismiss ground 1.

63 There is no merit in the appellant's alternative claim that, by virtue of s 105B, the prohibition in s 69(1) has the consequence that the overlapping area is land that is not open or available for mining. The overlapping area remains open for mining under s 18 notwithstanding a contravention of s 69(1). Persons other than the former holder are entitled to make an application for a mining tenement and the former holder may apply for a mining tenement other than a prospecting or exploration licence. Section 69(1) only modifies the scope of par (c) of s 18. I would dismiss this ground.

64 In view of my decision on grounds 1 and 2, it is not necessary to determine ground 3. In the absence of submissions on the subject from any respondent, I will confine myself to stating preliminary views. The relevant issues are whether the Minister and/or the Director General are the 'Crown' for the purposes of the Crown Suits Act and if not, whether s 47A of the Limitation Act applied so as to bar the appellant's claim against the Minister and the Director General.

65 Section 6 of the Crown Suits Act has been repealed but continues to apply to causes of action which accrued before 15 November 2005: Limitation Legislation Amendment and Repeal Act 2005 (WA), s 8(2). Section 6 requires a party proposing to take action against the Crown to give notice in writing of the proposed action and commence action within one year, or with the consent of the Attorney General within six years, from the date on which the cause of action accrued. The appellant did not comply with s 6. The appellant accepted that non-compliance with s 6 bars the right not the remedy.

66 For the purposes of the Crown Suits Act, 'Crown' is defined in s 3 to mean 'the Crown in right of the Government of Western Australia'. I would adopt the observations of the court in Western Australia v Watson [1990] WAR 248 on that subject:

By s 3 of the Act the term 'Crown' means the Crown in right of the Government of Western Australia ... The Government is constituted by the Premier and the other Ministers of the Crown holding the 'executive offices of the Government liable to be vacated on political grounds' referred to in s 43 of the Constitution Acts Amendment Act 1899. In other words the Government is in fact constituted by the Cabinet (266).

67 Section 10(1) of the Act provides that the Act shall be administered by the Minister. By s 10(2):

The Minister -

(a) shall be a corporation sole, with perpetual succession and shall have an official seal; and

(b) may, in his corporate name, acquire, hold, lease and otherwise dispose of real and personal property, and may sue and be sued in that name.

68 The notion of a 'corporation sole' was explained in Crouch v Commissioner for Railways (Qld) [1985] HCA 69; (1985) 159 CLR 22. The majority said:

[O]ne must, in the case of a corporation sole, distinguish between the transient natural person who happens to hold the particular office at a particular time and the continuing corporate identity which the law attributes to the office. A particular incumbent of the office is, for so long as he or she holds it, clothed by the law with the personality, powers and functions of the corporate entity. It is the office and not the particular human incumbent which is incorporated however and, even though the powers and functions of the office may lie dormant, the artificial corporate entity does not cease to exist when, by reason of a vacancy, the office lacks visible representation (35).

69 See also Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175 [322]. Having regard to these explanations of the meaning of 'Crown' and 'corporation sole', it must follow that the Minister in the exercise of his powers under the Act is not the Crown.

70 Section 11 of the Act provides that there shall be a department of the Public Service of the State to assist the Minister in the administration of the Act. The Director General is defined to mean the person for the time being holding or acting in the office of chief executive officer of that department. The Director General is joined as a party because the appellant sought an order that he amend and correct the register in relation to E39/876 and E39/877. The Director General does not come within the definition of the Crown as explained in Watson. Accordingly, s 6 of the Crown Suits Act had no application to either the Minister or the Director General.

71 The trial judge accepted that if s 47A of the Limitation Act applied, it did not provide an obstacle to the appellant's claim against the Minister or the Director General because s 47A bars the remedy rather than the right and must be specifically pleaded by a defendant [67]. Neither the Minister nor the Director General filed a defence to the appellant's claim. As there is no challenge to the trial judge's conclusions relating to s 47A, it is unnecessary to discuss the matter further.

72 I would dismiss the appeal and hear from the parties on costs.

73 OWEN JA: I agree with McLure P that the appeal should be dismissed. I also agree with her Honour's reasons for coming to that conclusion.