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ARELJ Article- Till Death Do Us Part: The undue impact of Freeth on Western Australia's Mining Tenement Forfeiture System

Tom Penglis
Winner of the 2022 ER Law Essay Competition. Produced with the support of the UWA Law School Scholarship in Mining Excellence. Supervised by John Southalan.

In Freeth as Executor of the Estate of Gerard V Brewer v O’Donnell [2021] WASC 393, Tottle J held that forfeiture applications made under the Mining Act 1978 (WA) against mining tenements held by deceased persons and before the grant of probate are nullities. This article critically examines Tottle J’s judgment and respectfully proposes that the three reasons for His Honour’s decision are erroneous, and proposes that the decision unduly frustrates the efficiency of the mining tenement forfeiture system. It primarily seeks to establish that forfeiture proceedings are actions in rem, with the consequence that forfeiture proceedings brought against deceased persons and before the grant of probate are valid. This article concludes that legislative reform is warranted to reverse the effect of the decision and proposes two minor reforms that would assist Wardens and the Department of Mines, Industry Regulation and Safety to appropriately deal with forfeiture applications made in relation to mining tenements held by deceased persons.

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