By Peter Brammall
At 11.59 am, the fifteenth and apparently final ball was drawn from the ballot box in the Kalgoorlie Warden’s Court.
For one company, it appeared to be a very good day. It had secured first place in a ballot for six blocks of ground next to the Emily Ann Nickel Mine in the Dundas Mineral Field.
For the others, it was disappointment. That is the nature of a ballot: someone wins and everyone else wonders what might have been.
But before the result could be confirmed, the Mining Registrar alerted Warden McPhee to a problem.
There should not have been 15 balls in the box.
There should have been 18.
Three exploration licence applicants had been left out completely.
What had appeared to be a completed mining ballot had suddenly become something very different: a contest in which three of the competitors had never made it to the starting line.
Eighteen companies chasing ground beside Emily Ann
The circumstances are set out in In the Matter of Competing Applications for Exploration Licences by Voyage Minerals and Others [2026] WAMW 14.
The applications covered six blocks of ground in the Dundas Mineral Field, immediately adjacent to the Emily Ann Nickel Mine.
That location helps explain what happened next.
When the ground became available, 20 applications were lodged. Two were subsequently withdrawn, leaving 18 companies competing for the same six blocks.
This was not an obscure patch of ground attracting a handful of hopeful applicants. It was ground beside a known nickel mine—and the level of interest was intense.
The applicants included Voyage Minerals, Flynn Gold, Charger Metals, Element 25, Mining Equities, TG Metals and a collection of other public and private companies.
Warden McPhee made the obvious observation: the fact that 18 separate parties remained in the contest suggested that the ground was considered prospective.
Each applicant had lodged within the prescribed period between 8.30 am and 8.45 am on 1 December 2023. Under the Mining Act 1978, they were treated as having applied at the same time.
No company could claim priority merely because it had lodged a few seconds earlier.
After all the geological research, corporate planning and hurried preparation needed to apply for ground beside the Emily Ann Nickel Mine, priority would be determined by chance.
Eighteen applicants were supposed to go into the ballot.
Only 15 made it into the box.
Why mining ballots exist
Warden McPhee explained that the ballot provisions are intended to prevent what he called the “unedifying spectacle” of applicants fighting to reach the front of the queue at the Mining Registrar’s office.
The legislation replaces a physical race with a random draw.
A slip is prepared for each application and placed inside a small plastic ball. The balls are sealed, counted and placed into a box. The box is shaken and handed to the Warden, who draws the balls one at a time in open court.
The order in which they emerge determines priority.
There is even a purpose-built antique ballot box at the Leonora court. It sits on a stand, can be sealed and spun, and is described in the judgment as “much loved by all”.
Warden McPhee noted that he had encouraged the adoption of similar devices elsewhere—but, apparently, without success.
It is an unexpectedly colourful detail in a mining case. But behind the plastic balls and antique equipment lies a serious process. The first ball drawn can determine who gets the opportunity to explore potentially valuable ground.
The applicants may have invested considerable time and money examining the geology, raising capital and preparing their exploration strategies.
Yet when applications are made at effectively the same time, all of that comes down to one moment of chance in a courtroom.
The ballot that was not the ballot
The ballot on 15 July 2026 initially appeared to have been prepared correctly.
The balls were counted before the draw. The number of balls matched the number of applications on the working sheet.
Warden McPhee then drew them one by one, announcing and recording the result as each ball was opened.
Nothing appeared to be wrong.
The problem only emerged after the fifteenth ball had been drawn.
Three applications had been omitted from the preparation paperwork:
- Goldarc Resources Limited’s application E63/2431;
- TG Metals Limited’s application E63/2434; and
- Dundas Resources Pty Ltd’s application E63/2435.
Because the applications were missing from the working sheet, no ballot slips had been prepared for them. Because no slips had been prepared, there were no balls for them in the ballot box.
The count had matched perfectly—but only because the list against which the balls were checked was also wrong.
It was a perfectly balanced error.
There were 15 names on the sheet, 15 balls in the box and three eligible applicants who had no chance of being drawn.
Could the missing applications simply be added at the end?
There was no easy repair.
The three omitted applicants could not simply be allocated sixteenth, seventeenth and eighteenth positions. That would have denied them any chance of being drawn first and would have converted a random ballot into an administrative penalty.
Their prospects of obtaining priority would have gone from one chance in 18 to zero.
But immediately scrapping the result also presented a problem.
One of the 15 participating companies had been drawn first. From its perspective, it had just won a properly conducted ballot. The company had done nothing wrong and may have wished to argue that the result should stand.
A fresh ballot would take away a favourable position already drawn and replace it with a new one-in-18 chance.
The Warden therefore faced two competing forms of unfairness.
Allowing the result to stand would be unfair to the three excluded applicants. Setting it aside without hearing from the apparent winner would be unfair to that company.
Can you win a ballot that never legally occurred?
Warden McPhee’s preliminary answer went directly to the heart of the problem.
The order required a ballot involving 18 applications.
The process conducted on 15 July involved only 15.
Therefore, the ballot that had been ordered had never actually taken place.
It was not simply a valid ballot with a minor procedural irregularity. It was a different ballot involving a different group of applicants.
As Warden McPhee put it:
“The ballot conducted was not the ballot required by the Order.”
His preliminary view was that the purported result should be set aside and the ballot conducted again with all 18 applicants included.
That appears to be the only outcome capable of restoring equality. A ballot is based entirely on chance, and chance can only operate fairly if every eligible applicant is placed in the box before the first ball is drawn.
The apparent winner still had a right to be heard
Warden McPhee did not immediately order a redraw.
There was little recorded legal authority dealing with an error of this kind. More importantly, procedural fairness required the affected companies to be told what had happened and given an opportunity to respond.
That was particularly important for the company drawn first.
The Warden therefore placed the outcome in abeyance and directed that the relevant papers and orders be provided to all affected parties, including the three omitted applicants.
The matter was adjourned to 18 November 2026. The parties were invited to make submissions about whether:
- the result should be accepted despite the error;
- the ballot should be declared invalid and conducted again; or
- some other course was legally available.
The decision therefore does not record the final outcome. It records the discovery of the error, the Warden’s preliminary view and the process established to decide what should happen next.
“My responsibility alone”
The most notable part of the decision may be its final few paragraphs.
Warden McPhee described the error as deeply regrettable. He did not blame the Mining Registrar, administrative staff or the person who prepared the slips.
Instead, he said:
“The process followed here occurred at my direction as the Warden.”
He then accepted that responsibility for the error was his alone and apologised to the affected parties.
That statement does not fix the ballot, but it is an unusually direct acknowledgment of responsibility.
The decision also explains why the mistake was formally recorded. If confidence in mining ballots depends on transparency, an administrative failure cannot simply be corrected quietly behind closed doors.
The applicants needed to know exactly what had happened, how it happened and what the Warden proposed to do about it.
A simple process with valuable consequences
On one level, this is a story about three missing slips of paper.
On another, it is about the integrity of the system used to allocate rights over potentially valuable mineral ground.
These were not applications for isolated ground that nobody else wanted. They covered ground next to the Emily Ann Nickel Mine and attracted 18 competing applicants.
The ballot was supposed to give every qualifying applicant an equal opportunity. Once three applicants were omitted, the apparent precision of the process—the counted balls, the checked list and the recorded draw—could not save it.
The case also demonstrates that checking numbers is not enough if everything is being checked against the same incorrect source.
Before a large ballot begins, the participating applications should be reconciled directly against the original ballot order, taking account of every withdrawal and company name change. The final list, ballot slips and balls must all be checked against that authoritative record.
Had that occurred, the discrepancy between 18 applications and 15 ballot balls should have been discovered before the draw.
Instead, 15 balls were opened, an applicant appeared to win the right to proceed over ground beside the Emily Ann Nickel Mine, and only then did everyone discover that three competitors had never been given a chance.
In mining, people often say that being in the right ground is partly a matter of luck.
In this case, three applicants did not even make it into the box.
