OWEN -v- GOLD TIGER HOLDINGS (AUSTRALIA) PTY LTD [2026] WASC 336

[2026] WASC 336 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : OWEN -v- GOLD TIGER HOLDINGS (AUSTRALIA) PTY LTD [2026] WASC 336 CORAM : BYDDER J HEARD : 16 APRIL 2026 & 17 JUNE 2026 DELIVERED : 17 AUGUST 2026 FILE NO/S : CIV 1022 of 2026 BETWEEN : TRISTAN DAVID OWEN Applicant AND GOLD TIGER HOLDINGS (AUSTRALIA) PTY LTD First Respondent WARDEN THOMAS MCPHEE Second Respondent Catchwords: Judicial Review - Chamber summons for summary dismissal of application for judicial review - Where applicant is an undischarged bankrupt - Judicial review of learned Warden’s orders - Forfeiture of mining tenements - Whether there was a denial of natural justice by the Warden - Summary dismissal of judicial review application refused -- 1 of 14 -- [2026] WASC 336 Page 2 Legislation: Bankruptcy Act 1966 (Cth) s 5, pt III, s 58, sch 2 s 5-16, sch 2 s 90-15, sch 2 s 90-20 Insolvency Law Reform Act 2016 (Cth) s 178 Mining Act 1978 (WA) s 8, s 103C, s 103F, s 162 Mining Regulations 1981 (WA) r 84C, r 102, r 137, r 139, r 140 Rules of the Supreme Court 1971 (WA) O 56 r 5(2)(j) Result: Summary dismissal application dismissed Category: B Representation: Counsel: Applicant : In person First Respondent : Mr T Kavenagh Second Respondent : No appearance Solicitors: Applicant : In person First Respondent : Kavenagh Legal Second Respondent : State Solicitor's Office -- 2 of 14 -- [2026] WASC 336 Page 3 Cases referred to in decision: Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239 Cummings v Claremont Petroleum NL [1996] HCA 19; (1996) 185 CLR 124 Goldrange Pty Ltd v Western Australian Planning Commission [2018] WASC 350 Ritson v Ryan [2024] QCA 236 TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49; (2010) 241 CLR 576 Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38 -- 3 of 14 -- [2026] WASC 336 BYDDER J Page 4 BYDDER J: Introduction 1 The applicant is an undischarged bankrupt. A Registrar of the Federal Court ordered on 14 January 2025 that the applicant's estate be sequestrated (Sequestration Order) under the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). Since that time, the applicant has been a party to proceedings challenging that order in the Federal Court. Those proceedings have not yet been finally resolved.1 2 The applicant was the sole holder of three exploration licences and the holder of a half-interest in a prospecting licence (Mining Tenements) under the Mining Act 1978 (WA) (Mining Act). In July 2025, the first respondent lodged applications for the forfeiture of the mining tenements (Forfeiture Applications).2 3 The Forfeiture Applications came before the learned Warden on 17 September 2025. The applicant was present at the hearing but the learned Warden refused to hear from him. At the hearing, counsel for the first respondent submitted that as the applicant was a bankrupt he had no right to be heard on the Forfeiture Applications. The learned Warden adjourned the Forfeiture Applications to 10 December 2025 and ordered the first respondent to file any affidavit in respect of its objection to the applicant's standing to appear.3 4 The first respondent filed two affidavits before the next hearing on 10 December 2025 deposing to the applicant being an undischarged bankrupt. At that hearing, the learned Warden ordered forfeiture of the prospecting licence and recommended to the Minister for Mines that the exploration licences be forfeited.4 5 The applicant was not present at the hearing on 10 December 2025. During that hearing, the following exchange took place between the learned Warden and counsel for the first respondent:5 KAVENAGH, MR: [the applicant is] bankrupt and there's no stay. THE WARDEN: Yes. I think that's certainly the position. If you recall, Mr Owen tried to appear last time, and I don't recall whether he said 1 Affidavit of Timothy Joseph Kavenagh sworn 29 January 2026 (Kavenagh 1) [4] - [9]. 2 Kavenagh 1 [11]. 3 Kavenagh 1 [12] - [14]. 4 Kavenagh 1 [15] - [18]. 5 Kavenagh 1 [17] and Attachment TJK10 (30) - (31). -- 4 of 14 -- [2026] WASC 336 BYDDER J Page 5 this in relation to your matter or subsequently when we were dealing with the departmental forfeiture application, but what he said to me, in broad terms, was that he had no difficulty with the forfeiture orders being made. KAVENAGH, MR: Well, then I would move for those orders. THE WARDEN: Yes. Well, I was going to suggest that that might be the appropriate course in this proceeding, in light of what he said to me last time. And as I said to you, I don't have any difficulty in taking that action, in light of the circumstances presenting here, namely that Mr Owen is a bankrupt. There is no stay. The trustee in bankruptcy doesn't appear to wish to be involved in any of this, and I take comfort and fortification from the fact that Mr Owen, nonetheless, stood before me on the last occasion and said that the tenements could be forfeited to the department. 6 After making the orders sought by the first respondent, there was a further relevant exchange:6 THE WARDEN: Just hold there for a second, Mr Kavenagh. Ms Harken has just handed me something. Is Mr Carboon here? Mr Kavenagh, so that you're aware, there was a communication to the Mining Registrar saying that Mr Owen was unavailable, and Mr Carboon would be in attendance. Mr Carboon is not here, but I'm not going to change the nature of the orders that I've made in the circumstances. KAVENAGH, MR: Thank you, your Honour. THE WARDEN: As I said, in light of what occurred on the last occasion, I am satisfied that that is the appropriate course of action. 7 The prospecting licence was forfeited on 10 December 2025 by order of the learned Warden.7 The Minister for Mines forfeited the exploration licences in February 2026.8 8 The applicant applied for judicial review (Judicial Review Application) of the learned Warden's orders to forfeit the prospecting licence and recommend the forfeiture of the exploration licences. The applicant contends, amongst other matters, that he was denied natural justice because the learned Warden did not give him an opportunity to be heard before making those orders. 6 Kavenagh 1 [17] and Attachment TJK10 (33). 7 Kavenagh 1 [18] and Attachment TJK11 (35). 8 Affidavit of Timothy Joseph Kavenagh sworn 31 March 2026 (Kavenagh 2) [5] - [7], Attachments TJK12 and TJK13. -- 5 of 14 -- [2026] WASC 336 BYDDER J Page 6 9 The first respondent has applied to summarily dismiss the Judicial Review Application (Summary Dismissal Application). These reasons deal with the Summary Dismissal Application. Summary dismissal in an application for judicial review 10 Order 56 rule 5(2)(j) of the Rules of the Supreme Court 1971 (WA) provides: On an application, the Court may do one or more of the following – … (j) refuse the whole or a part of the application if it has no reasonable prospect of succeeding. 11 In order to succeed in its Summary Dismissal Application, the first respondent must show that the prospects of the applicant obtaining relief in respect of the learned Warden's decision9 are not reasonable, in the sense of being rational, or sensible to expect. In the application of that test, the Court should be careful not to stifle the development of the law by dismissing an application, or one or more grounds of review, other than where there is a high degree of certainty that it does not have reasonable prospects of succeeding. However, the Court must also bear in mind that the power in O 56 r 5(2)(j) exists to ensure that applications, or parts thereof, that are unmeritorious can be weeded out at an early stage in an appropriate case. 12 While the power to summarily dismiss is not to be exercised lightly, it may be exercised even if the application for judicial review (or the relevant ground(s) of review) is neither 'hopeless' nor 'bound to fail'. The purpose of O 56 r 5(2)(j) will be defeated if it is exercised only in cases where the court forms a certain and concluded view that the application or ground would necessarily fail.10 The first respondent's submissions 13 The first respondent submits that the applicant has no standing to bring the judicial review application or, in the alternative, that the application has no reasonable prospect of succeeding. The basis for those alternative submissions is the same and flows from the fact that the applicant is an undischarged bankrupt. 9 Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239 [70] (Pritchard J). 10 See Goldrange Pty Ltd v Western Australian Planning Commission [2018] WASC 350 [6] - [11] (Quinlan CJ) and the cases his Honour discusses therein. -- 6 of 14 -- [2026] WASC 336 BYDDER J Page 7 14 The first respondent says that when the applicant became a bankrupt, his property vested forthwith in the trustee of his estate (Trustee).11 That property includes personal property12 and a mining tenement is personal property.13 15 The first respondent principally relies on Cummings v Claremont Petroleum NL14 (Cummings) and Ritson v Ryan15 (Ritson) as authority for the proposition that an undischarged bankrupt cannot bring proceedings to protect property of which the bankrupt has been divested on bankruptcy. The first respondent also submits that the applicant has brought the Judicial Review Application to protect the mining tenements, which comprise property of which the applicant was divested on bankruptcy. For those reasons, says the first respondent, the applicant lacks standing to have commenced or to maintain the Judicial Review Application. 16 The first respondent also submits that for the same reasons, the applicant had no right to be heard before the learned Warden and was not permitted to attend the hearings before his Honour. As the trustee chose not to attend the hearings and the applicant was not permitted to do so, the first respondent says that the learned Warden was able to make orders without a substantive hearing. 17 This is because, it is submitted, a respondent to a forfeiture application is required to attend a mention hearing before a Warden and the failure to do so enlivens the discretion to determine a forfeiture application without a substantive hearing.16 The applicant's submissions 18 The applicant submits that the decisions in Cummings and Ritson are concerned with proceedings brought by an undischarged bankrupt and not with proceedings brought against an undischarged bankrupt. A bankrupt is entitled to be heard, says the applicant, at least in a proceeding brought against the bankrupt.17 11 Bankruptcy Act s 58(1). 12 Bankruptcy Act s 5 (definition of 'property'). 13 TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49; (2010) 241 CLR 576 [28] - [41] (French CJ, Gummow, Heydon, Crennan and Kiefel JJ) citing Adamson v Hayes (1973) 130 CLR 276. 14 Cummings v Claremont Petroleum NL [1996] HCA 19; (1996) 185 CLR 124. 15 Ritson v Ryan [2024] QCA 236. 16 Mining Act s 162(2)(ra); Mining Regulations 1981 (WA) r 137(1), r 139(1) and r 140(1). 17 ts 34, 39 - 40. -- 7 of 14 -- [2026] WASC 336 BYDDER J Page 8 19 The applicant also submits that the Judicial Review Application is not merely about a private property dispute. He is challenging the legality of a decision affecting him and the forfeiture applications carried with them the possibility that the learned Warden might order the applicant to pay a penalty. It makes no sense, says the applicant, that he cannot be heard to defend himself in those circumstances.18 20 The applicant further submits that his trustee in bankruptcy was not told about the hearings before the learned Warden and therefore was not given an opportunity to appear.19 21 Finally, the applicant submits that if he cannot appear and his trustee in bankruptcy neither appears nor takes control of the mining tenements, then in practical terms no one was able to respond to the forfeiture applications and that is inconsistent with the Mining Act and natural justice. Once again, the applicant says that doesn't make sense.20 Consideration 22 The underlying premise of the Summary Dismissal Application is that when the Sequestration Order was made, the applicant's property vested in the Trustee and the applicant no longer had an interest in that property. If that premise is correct, several consequences would appear to follow. (a) The applicant has no right to bring or prosecute proceedings to protect, enhance or add to the property of which he has been divested on bankruptcy.21 (b) An appeal takes its character from the underlying cause of action which is the subject of the decision under appeal. If an appeal relates to property that vested in the Trustee upon bankruptcy, or to a claim by the applicant for money or property that would on recovery vest in the Trustee, then the right to appeal is vested in the Trustee.22 (c) As in an appeal, an application for prerogative relief takes its character in part from the character of the rights sought to be vindicated in the proceedings in which the orders were made which are the subject of the prerogative relief sought. This is so 18 ts 34 - 35. 19 ts 37 - 38. 20 ts 37; applicant's submissions filed 30 March 2026 [31]. 21 Cummings (135) - (136) (Brennan CJ, Gaudron and McHugh JJ). 22 Ritson [32] (Cooper J, with whom Mullins P and Freeburn J agreed). -- 8 of 14 -- [2026] WASC 336 BYDDER J Page 9 even though the purpose of the application is to vindicate not only the personal interest of the person bringing the application, but the law itself.23 (d) The Forfeiture Applications related to the Mining Tenements. The Judicial Review Application challenges the learned Warden's orders on the Forfeiture Applications, which had the effect of forfeiting or recommending forfeiture of the Mining Tenements. As such, if the Mining Tenements vested in the Trustee upon the applicant's bankruptcy, it appears that the right to bring the Judicial Review Application vested in the Trustee because it relates to property that vested in the Trustee upon bankruptcy. (e) This is consistent with a fundamental aspect of the law of bankruptcy, namely that bankrupts are divested of both their interest in their property and liability for their provable debts. The forfeiture of the Mining Tenements reduced the assets available to pay the applicant's creditors. But it is immaterial that if the Judicial Review Application is successful, the assets available may increase and there may even be money left over after the applicant's creditors are paid.24 As Brennan CJ, Gaudron and McHugh JJ put it in relation to an appeal from a money judgment entered against a bankrupt in Cummings,25 [a] bankrupt's contingent interest in a surplus does not give him an interest which would allow him to sue to enforce proprietary rights and, that being so, it cannot give him an interest to appeal to minimise liabilities. (f) If the Trustee declines to exercise her power to sue, appeal or commence an application for judicial review, the applicant is not without an avenue for redress. It is open to the applicant to apply to the appropriate court26 under s 90-20 of sch 2 to the Bankruptcy Act. The appropriate court can make 'such orders as it thinks fit in relation to the administration of a regulated debtor's estate' under s 90-15, including to require the trustee to 23 Ritson [33] (Cooper J, with whom Mullins P and Freeburn J agreed). 24 See Cummings (137) - (138) (Brennan CJ, Gaudron and McHugh JJ). 25 Cummings (138) (footnote omitted). 26 That is, a court having jurisdiction in bankruptcy under the Bankruptcy Act: see s 5 of that Act (definition of 'the Court'). As to the bankruptcy jurisdiction, see pt III of the Bankruptcy Act. -- 9 of 14 -- [2026] WASC 336 BYDDER J Page 10 make or participate in a judicial review application or to allow the applicant to do so using the trustee's name.27 23 Those consequences would appear to address the submissions on which the applicant sought to rely in opposing the Summary Dismissal Application. However, I do not have to reach a final view on these matters and it is unnecessary to address those submissions further for the purpose of determining the Summary Dismissal Application. Even assuming all of the above is correct, it is unclear whether the underlying premise of the Summary Dismissal Application is correct. 24 Section 58 of the Bankruptcy Act relevantly provides: (1) Subject to this Act, where a debtor becomes a bankrupt: (a) the property of the bankrupt, not being after-acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and (b) after-acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee. … (2) Where a law of the Commonwealth or of a State or Territory requires the transmission of property to be registered and enables the trustee of the estate of a bankrupt to be registered as the owner of any such property that is part of the property of the bankrupt, that property, notwithstanding that it vests in equity in the trustee by virtue of this section, does not so vest at law until the requirements of that law have been complied with. 25 Section 103C of the Mining Act relevantly provides: (1) This section applies to the following instruments - (a) a dealing; … 27 See Cummings (138) - (139) (Brennan CJ, Gaudron and McHugh JJ). Their Honours referred to s 178, which was the predecessor to s 90-15 and s 90-20 of sch 2 of the Bankruptcy Act. Section 178 was repealed by the Insolvency Law Reform Act 2016 (Cth), which inserted sch 2 into the Bankruptcy Act. Section 5-16(a) of sch 2 of the Bankruptcy Act relevantly defines the term 'regulated debtor's estate' to mean in relation to a bankrupt, the estate of the bankrupt. -- 10 of 14 -- [2026] WASC 336 BYDDER J Page 11 (2) An instrument to which this section applies is to be - (a) lodged for registration in the prescribed manner and prescribed form; and (b) accompanied by the fee (if any) prescribed in respect of the instrument. (3) Only an instrument to which this section applies may be registered. … (8) A dealing does not pass any legal estate or interest in a mining tenement or in any way charge or encumber a mining tenement until it is registered in accordance with this section. 26 Section 8(1) of the Mining Act defines the term 'dealing' to mean 'a transfer or mortgage of a legal interest in a mining tenement'. 27 It follows from these provisions of the Mining Act that no legal interest is created on a transfer until registration, but the equitable interest passes on dealing.28 28 Section 103F of the Mining Act provides for the Director General of Mines to cause a register to be compiled and maintained which contains such particulars relating to mining tenements and applications for mining tenements as may be prescribed. Regulation 84C(b)(xii) of the Mining Regulations 1981 (WA) (Mining Regulations) provides that among the particulars that the register is to contain in relation to a mining tenement is any devolution under r 102. 29 Regulation 102(1) of the Mining Regulations provides: On the death, bankruptcy, insanity or liquidation of the holder of, or applicant for, a mining tenement, his legal personal representative, receiver, trustee or a liquidator in whom the property of the company of which he is liquidator has been vested, as the case may be, may lodge a devolution in the form of Form 28 with the prescribed fee and an attested or certified copy of the document under which he derives his title. 30 In my opinion, the effect of the provisions of the Mining Act and the Mining Regulations to which I have referred is that, to paraphrase s 58(2) of the Bankruptcy Act: 28 Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38 [183] (Buss P and Livesey AJA). -- 11 of 14 -- [2026] WASC 336 BYDDER J Page 12 (a) the Mining Act requires the transmission of a mining tenement to be registered; and (b) r 102 of the Mining Regulations enables the trustee of the estate of a bankrupt to be registered as the owner of the mining tenement that is part of the property of the bankrupt through lodging a Form 28. 31 It follows pursuant to s 58(2) of the Bankruptcy Act that while the Mining Tenements vested in the Trustee in equity when the Sequestration Order was made, they will not vest in the Trustee in law until she lodges a Form 28 in respect of the Mining Tenements. That is a step the Trustee has yet to take. 32 In further written submissions filed on 10 August 2026, counsel for the first respondent submitted that: (a) the vesting of the legal interest in the Mining Tenements is only subject to a contingency, namely complying with the requirements set out in [30] above; (b) once that contingency is satisfied by lodging the Form 28, the legal interest automatically vests in the Trustee; (c) the word 'property' as defined by s 58(1) of the Bankruptcy Act includes contingent interests; and (d) therefore the applicant is not entitled to bring or prosecute proceedings to protect the Mining Tenements. 33 A difficulty with that submission is that Cummings and Ritson both appear to be predicated on the bankrupt having been divested of the property. The consequences to which I refer above at [22] are said to be 'consistent with a fundamental aspect of the law of bankruptcy, namely that bankrupts are divested of both their interest in their property and liability for their provable debts'. If the applicant retained a legal interest in the Mining Tenements, it is unclear how he can be said to have been divested of his interest in that property. 34 It is common ground that at all material times, the applicant remained registered as the holder of the mining tenements in the -- 12 of 14 -- [2026] WASC 336 BYDDER J Page 13 register maintained under the Mining Act, because the trustee had not lodged the form required by r 102 of the Mining Regulations.29 35 Neither Cummings nor Ritson deal with a situation in which the equitable interest in a bankrupt's property has vested in the trustee in bankruptcy but the legal interest has not. In both cases, there was no applicable requirement of the kind described in s 58(2) of the Bankruptcy Act. 36 As at all material times the Mining Tenements at least arguably remained vested in the applicant at law, that raises significant questions about whether he had a right to be heard on the Forfeiture Applications that was independent of the Trustee's right to be heard. It is common ground that the applicant was not given a right to be heard on the Forfeiture Applications. 37 Further, it is also common ground that the Trustee was not on notice of either of the hearings before the learned Warden to which I have referred above.30 At least on the basis of the Mining Tenements having vested in the Trustee in equity, the Trustee would also appear to have had a right to be heard. If she did, that right was not afforded to her. 38 The Trustee is on notice of the Judicial Review Application, which alleges a denial of procedural fairness, and does not wish to be heard on the application.31 In those circumstances, it may be that the applicant does not have standing to allege a denial of procedural fairness to the Trustee in relation to the Forfeiture Applications. Even if that be so, this is a case in which either or both of the applicant and the Trustee were at least arguably entitled to be heard on the Forfeiture Applications and neither of them were. Such a case is one in which the admonition not to exercise the power to summarily dismiss lightly appears particularly relevant. 39 In my opinion, the effect of s 58(2) of the Bankruptcy Act on the vesting of the Mining Tenements in the Trustee and the consequences of that effect for the right of the applicant and the Trustee to be heard on the Forfeiture Applications are not questions that should be resolved on a Summary Dismissal Application. They should be the subject of 29 Mining Regulations r 84C(b)(xii) and r 102. 30 ts 43. 31 Kavenagh 1 [10] and Attachment TJK6. -- 13 of 14 -- [2026] WASC 336 BYDDER J Page 14 full argument at a substantive hearing of the Judicial Review Application. Disposition 40 The Summary Dismissal Application should be refused. 41 Given that a possible outcome of the Judicial Review Application is that the learned Warden's recommendations to the Minister for Mines were invalid and the potential consequences of that outcome for the Minister's forfeiture of the exploration licences, it would be appropriate for the Minister for Mines to be joined as a third respondent. 42 I will hear the parties on the appropriate orders to give effect to these reasons. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. ST Associate to the Honourable Justice Bydder 17 AUGUST 2026 -- 14 of 14 --