This decision is one of the more important recent decisions of the Warden’s Court in that it expands the practical remedies available in tenement validity disputes and confirms the breadth of the Wardens Court powers.
In this matter, the private landowner plaintiff sought injunctive relief in the Warden’s Court to restrain a tenement holder, Ausgold, from dealing with tenements over which surface rights had been granted. The landowner’s plaint was that the grant of these surface rights was fundamentally defective because the application for the rights was not served on the landholder. The purpose of the application for injunctive relief was to preserve the subject matter of the landholder’s plaint proceedings and to prevent the protective effects of section 116(2) of the Mining Act 1978 (WA) (indefeasibility of title) from being triggered.
The Court granted an injunction restraining Ausgold from any dealing with the tenements, to preserve the plaintiff’s position pending final determination of the plaint. The Court held that it had jurisdiction and power to grant the injunction as the interest to be protected – the plaintiff’s claim that the surface rights were invalid – was real and any dealing with the tenements could render potentially invalid rights valid, without notice to the plaintiff.
The case confirms the power of the Warden to restrain dealings in tenements pending determination of validity challenges. It also highlights the importance of procedural compliance when making application for tenure under the Mining Act, in this case, for surface rights.