Stop right there: Warden’s Court grants injunction restraining dealing with tenements

In Opotiki Pty Ltd as trustee for the Caldwell Family No. 2 Trust & Ors v Ausgold Ltd & Ors [2026] WAWC 1, the WA Warden’s Court has granted an injunction restraining a tenement owner from dealing with tenements to preserve the subject matter of proceedings seeking declarations of invalidity in respect of the grant of surface rights from the protective effects of section 116(2) of the Mining Act 1978 (WA).

Background and findings

The injunction sought to preserve the subject matter of the primary dispute by preventing dealings which would trigger the protection of the second clause of s 116(2) of the Mining Act 1978 (WA) (the Mining Act),¹ which would have the effect of extinguishing the landowner Plaintiffs’ claims in the primary dispute. The primary dispute, in broad terms, concerned challenges by the landowners to the validity of historic grants of surface rights over a collection of mining tenements owned by the Respondents (the Ausgold Parties).

Relying on Barker J’s reasoning in Global Doctor,² the Court confirmed that the power of a Warden is coextensive with a Supreme Court Judge, when acting within jurisdiction.³ The Warden possessed the requisite power to protect the subject matter of the primary proceedings which were properly within the Warden’s jurisdiction.

The Court also found that s 134(3)(g) of the Mining Act provided an additional and sufficient statutory source of power to grant the restraint sought.

Implications

Since the High Court’s decision of Forrest & Forrest,⁴ historic non-compliance with the Mining Act has remained a persistent issue. Recent cases have illuminated potential avenues to security of tenure by way of s 116(2) protection, where there has been non-compliance with the Mining Act.

However, if there is a defect in the grant of surface rights in a tenement, which is subject to a challenge and not yet protected by s 116(2), tenement holders should be aware that the Warden’s Court (in addition to the Supreme Court) has the power to prevent dealings which may frustrate that challenge.

Ultimately, strict compliance with the requirements of the Mining Act remains the gold standard for security of tenure in WA. 

HFW were pleased to act for the Plaintiffs in this case. 

Footnotes

1. Refer to HFW’s September 2025 bulletin article on Peter John Panizza v Barto Gold Mining Pty Ltd & Ors [2025] WAWC 2 for another case which considered the effect of the second clause of section 116(2) of the Mining Act.
2. [2003] WASCA 119 at 42.
3. at [135]. Relying on section 135(4) of the Mining Act and section 16 of the Supreme Court Act 1935 (WA).
4. Forrest & Forrest Pty Ltd v Wilson (2017) 262 CLR 510.