1. Warden dismisses application for exemption from expenditure requirements on basis that insufficient attempts made to obtain relevant approvals

In Pilbara Gold Corporation Pty Ltd v Turner River Holding Pty Ltd [2024] WAMW 6, the Warden dismissed an application by Pilbara Gold for an exemption from expenditure requirements, finding that there were not "political, environmental, or other difficulties" in obtaining approvals which prevented expenditure. Instead, Pilbara Gold had made insufficient attempts to obtain the relevant approvals.

Pilbara Gold had applied for an exemption from the expenditure condition in relation to one of its exploration licences. The minimum expenditure condition for the tenement was $140,000 but Pilbara Gold had only spent $33,540 for the relevant year. Pilbara Gold sought an exemption for the full amount of the obligation relying on section 102(2)(g) of the Mining Act 1978 (WA) ("there are political, environmental, or other difficulties in obtaining approvals which prevent mining or restrict it in such a way that makes it impracticable"). Pilbara Gold contended that:

• it had been negotiating to gain access to the tenement, however those negotiations were still ongoing; and
• until access was given, it was unable to conduct its planned exploration activities.

The tenement fell within the Yandeyarra Reserve which is managed by the Mugarinya Community Association. Pilbara Gold needed to obtain the authorisation of the Minister to enter or remain on the Reserve. In order to obtain that authority, Pilbara Gold wrote to the Association setting out its proposed activities and proposing a meeting if required.

The Association responded stating that:

• it had been developing a revised business model for the Reserve;
• Pilbara Gold's request gave rise to a risk that the Association's prospects of obtaining a revised business model may be compromised;
• the Association's preference was for no exploration activities to be progressed until after a revised business model was settled;
• notwithstanding this, if Pilbara Gold continued to press its request for access, then representatives of the parties should meet to discuss; and
• several other circumstances were negatively affecting the Association's ability to respond to third party requests.

The Association proposed that, in advance of any meeting, Pilbara Gold provide a detailed project description for its proposed exploration activities.

In determining Pilbara Gold's application, the Warden found that Pilbara Gold did not submit any proposal to the Association or seek to arrange a meeting with the Association. Accordingly, the Warden found that Pilbara Gold had done nothing to advance its negotiations with the Association and therefore should not be entitled to an exemption from expenditure.

2. Supreme Court determines that decision of warden to consent to lodgement of caveat is "administrative" and therefore cannot be appealed

In ARM Mining Pty Ltd v SKR New Investment Pty Ltd [2024] WASC 103, the Supreme Court determined that an appeal to it was "incompetent" as this was not the appropriate procedure to challenge an "administrative" decision of the Warden to consent to the lodgement of a caveat.

In May 2012, ARM Mining, SKR New Investment and Mineral Wealth (a related party of SKR New Investment) entered into an agreement whereby Mineral Wealth would sell a mining lease to ARM Mining in return for ARM Mining paying SKR New Investment an initial sum and ARM Mining and SKR New Investment entering into a royalty agreement. In December 2012, the parties entered into the royalty agreement. In June 2018, SKR New Investment lodged an absolute caveat against the mining lease based upon the royalty agreement.

In October 2018, ARM Mining commenced proceedings in the Warden's Court seeking the removal of the caveat on the basis that the royalty agreement did not create an interest in the mining lease which allowed the lodgement of a caveat. In November 2019, Warden upheld ARM Mining's claim.

SKR New Investment subsequently brought a claim alleging that the royalty agreement formed part of the overall sale agreement for the mining lease, and that ARM Mining's potential indebtedness to SKR New Investment under the royalty agreement gave rise to an interest which allowed the lodgement of a caveat. SKR New Investment accordingly sought the Warden's consent under the Mining Act 1978 (WA) to lodge a "successive caveat". In January 2023, a different Warden upheld SKR New Investment's claim, stating that SKR New Investment had the Warden's consent to lodge a successive caveat.

ARM Mining then sought to appeal this decision to the Supreme Court. However, a preliminary issue arose as to whether the Warden's decision was "judicial" or "administrative" in character. The significance of the distinction is that if a Warden's decision is administrative it cannot be appealed, but rather can only be the subject of a judicial review application. There are important substantive and procedural distinctions between an appeal and a judicial review application. SKR New Investment argued that the Warden's decision was administrative, and therefore that ARM Mining's appeal was incompetent.

The Supreme Court noted that under the Mining Act, the Warden is given both judicial and administrative functions. The judicial functions generally involve the determination and enforcement of existing legal rights and obligations. The administrative functions generally involve the determination of what legal rights and obligations should be created in the future. The Court concluded that the Warden had exercised an administrative function for reasons including that:

• the decision was not the determination of existing legal rights; and
• the consent to the lodgement of a successive caveat was not a matter referred to in the Mining Act as being withing the Warden Court's jurisdiction or power.

The Supreme Court accordingly determined that the appeal was incompetent. The Court declined to treat the appeal as a judicial review application, which means that ARM Mining will need to commence a new application if it wishes to challenge the Warden's decision.

3. Warden's Court determines that pastoral objectors may be heard in relation to a public interest objection

In Australian Vanadium Limited v Cousens [2024] WAMW 2, the Warden dismissed an application which sought to deprive pastoral objectors of their ability to raise a public interest objection, finding that the objection was not a "cloak" for the objectors' private interests.

Australian Vanadium had applied for a miscellaneous licence for the purpose of a bore field. Certain pastoralists, over whose station (which also contained a carbon project) the miscellaneous licence would overlap, objected to the application. The objection was on various grounds, including that the grant of the application would not be in the public interest. The public interest objection was that the grant of the miscellaneous licence would involve the reservation of land for a purpose for which there was currently no reasonable expectation of being achieved (given there was no evidence of any hydrogeological investigations or data collection by Australian Vanadium). The objectors subsequently conceded that their objections, save for the public interest objection, could be dealt with by way of conditions on the grant of the licence.

Australian Vanadium argued that the objectors should not be heard at trial in relation to their objections. In relation to the objections relating to the proposed conditions, this was on the ground that the objectors had not identified why the Department's draft conditions were not reasonable and appropriate or suggested any conditions themselves. In relation to the public interest objection, this was on the ground that the objectors were "cloaking" their private interest concerns in a public interest objection.

In relation to this first issue, the Warden determined that she was not in a position at an interlocutory stage, based on the limited evidence and legal submissions, to determine whether the draft conditions provided by the Department were sufficient, or whether any failure by the objectors to propose their own conditions or enter negotiations should bar them from having their say. Accordingly, the Warden determined that the objectors should be heard as to the conditions.

In relation to the second issue, the Warden determined that the objectors could by their submissions assist in resolving legal matters as to the application of the Mining Act 1978 (WA) and its underlying policy. Therefore, the Warden determined that the objectors should be heard in relation to the public interest objection.

4. Warden declines to award costs following withdrawal of applications for exploration licences

In Rio Tinto Exploration Pty Ltd v Western Australian Forest Alliance Inc & Others [2024] WAMW 5, the Warden determined that the maintenance of applications for exploration licences by Rio Tinto was not "frivolous or vexatious". The Warden found that despite non-compliance with the relevant "section 58(1)(b) statements", the conduct of Rio Tinto did not meet the high threshold of frivolous or vexatious conduct and therefore that objectors to the applications should not receive their costs.

In August 2022, Rio Tinto lodged applications for exploration licences over land in the South West of Western Australia. An environmental group, Western Australian Forest Alliance, and other parties objected to the applications. In March 2023, Rio Tinto withdrew the applications. The reasons for withdrawal were not disclosed, although it was accepted by all parties that Rio Tinto's section 58(1)(b) statements in support of its applications were invalid in light of the True Fella decision (True Fella Pty Ltd v Pantoro South Pty Ltd [2022] WAMW 19).

Western Australian Forest Alliance and certain other objectors then sought its costs. Costs in proceedings before the Warden (acting "administratively") are only available if an application has been frivolously or vexatiously commenced or maintained. The objectors argued that Rio Tinto's maintenance of the applications was frivolous or vexatious, essentially because the applications had been maintained subsequent to the True Fella decision (also of August 2022).

The Warden found that Rio Tinto's maintenance of the applications was not frivolous or vexatious for several key reasons:

• While the applications did not comply with the clarified legal standards, this did not by itself indicate frivolous or vexatious conduct.
• The applications were withdrawn relatively soon after the Toolonga decision, which further clarified the requirements and consequences of non-compliance. This indicated a responsive approach by Rio Tinto to evolving legal standards.
• As there was ambiguity and a possibility of success until the Toolonga decision, the applications were not "doomed to fail" prior to this decision.
• The unprecedented number of objections (approximately 1,300) and the complex nature of the case impacted the timing and strategy of legal actions, including the withdrawal of the applications.
• There was no indication that Rio Tinto had maintained the applications with the intent to harass or unduly burden the objectors or the Warden. The Warden also found no evidence of malintent or behaviour that would typically characterise actions as vexatious, such as repeated and unfounded filings or deliberate stalling.

The Warden accordingly declined to award costs against Rio Tinto.

5. Supreme Court of New South Wales provides clarity on retention of Title Security Interests

In Metal Manufacturers Pty Ltd trading as TLE Electrical v WesTrac Pty Ltd [2024] NSWSC 144, the Supreme Court of New South Wales determined that a retention of title security interest only continued in relation to a payment to a company now in liquidation and not the underlying goods.

In July 2022, WesTrac entered into a contract with Verdia for Verdia to design, supply and install a solar electricity system at WesTrac’s premises. In August 2022, Verdia then subcontracted part of the works to a third company, SES.

Between these dates, SES had entered a contract with Metal Manufactures for Metal Manufactures to supply SES with 3,030 solar panels. That sale was subject to Metal Manufactures' standard terms, which included a "retention of title" clause to the effect that title in the solar panels did not pass to SES until payment. Metal Manufactures registered a "Purchase Money Security Interest" on the Personal Property Securities Register. Metal Manufactures delivered the panels to SES but SES failed to pay for them.

WesTrac did not know about the contract between SES and Metal Manufacturers. It made a required milestone payment of approximately $700,000 to Verdia following the delivery of the solar panels to WesTrac. Shortly after this, Verdia entered administration and later liquidation. Verdia did not pay SES or Metal Manufactures for the solar panels.

Metal Manufactures then commenced proceedings in the Supreme Court of New South Wales seeking:

• a declaration that it had a first ranking security interest over the solar panels;
• an order that WesTrac deliver up the solar panels to Metal Manufactures; and
• damages.

In determining the proceedings, the Court applied section 32(a)(i) of the Personal Property Securities Act 2009 (Cth), which provides:

Subject to this Act, if collateral gives rise to proceeds (by being dealt with or otherwise), the security interest … continues in the collateral…

The Court distinguished between the collateral (the solar panels) and the proceeds (the $700,000 payment by WesTrac to Verdia). The Court determined that the collateral (the solar panels) had "given rise" to proceeds (the $700,000 payment by WesTrac to Verdia) and therefore found that Metal Manufactures' security interest only continued in relation to the $700,000 payment and not the solar panels. As a result, Metal Manufactures would need to engage with Verdia's liquidator if it sought to enforce its security interest against the $700,000.

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