Bob Brown Foundation Inc v Barnett

[2022] TASSC 64

[2022] TASSC 64

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Bob Brown Foundation Inc v Barnett [2022] TASSC 64
PARTIES:	BOB BROWN FOUNDATION INC
HAYES, Courtney
JORDAN, Scott
v
BARNETT, Guy
MMG AUSTRALIA LTD
FILE NO:	536/2022
DELIVERED ON:	4 November 2022
DELIVERED AT:	Hobart
HEARING DATE:	10 October 2022
JUDGMENT OF:	Blow CJ
CATCHWORDS:

Evidence – Adducing evidence – Witnesses – Competence and compellability – Compellability – Minister of the Crown – Subpoena to give evidence as to decision made in portfolio no longer held by Minister – Whether leave of the Court required for issue of subpoena – Whether appropriate case for leave.

Crown Proceedings Act 1993 (Tas), s 14(1).
Aust Dig Evidence [1039]

Procedure – Civil proceedings in State and Territory courts – Procedural aspects of evidence – Subpoenas and notice to produce at hearing – Other matters – Application for inspection of documents produced by recipient of subpoena – Whether documents irrelevant.

Supreme Court Rules 2000 (Tas), r 500B(6).

Aust Dig Procedure [1375]

REPRESENTATION:

Counsel:

Applicants:	C Gunson SC
First Respondent:	P Turner SC
Second Respondent:	M E O'Farrell SC
Solicitor-General:	P Turner SC

Solicitors:

Applicants:	FitzGerald and Browne
First Respondent:	Solicitor-General
Second Respondent:	Ashurst Australia

Judgment Number:	[2022] TASSC 64
Number of paragraphs:	40

Serial No 64/2022 File No 536/2022

BOB BROWN FOUNDATION INC , COURTNEY HAYES and

SCOTT JORDAN v GUY BARNETT and MMG AUSTRALIA LIMITED

REASONS FOR JUDGMENT BLOW CJ
4 November 2022

1             On 14 October 2022 I made some orders in relation to two subpoenas that had been issued in these proceedings at the request of the applicants. These are my reasons for the orders that I made on that day. The first subpoena was addressed to the first respondent in the proceedings, the Honourable Guy Barnett. I ordered that that subpoena be set aside. The second subpoena was addressed to the Director of Mines. I made an order granting leave to the legal representatives of all parties to inspect and copy documents that had been produced to the Court by the Director in response to that subpoena.

Background

2             The second respondent, MMG Australia Limited, operates a mine near Rosebery. It wishes to establish a new tailings dam on the northern side of the Pieman River. There is a controversy as to the likely environmental impact of the proposed tailings dam. MMG holds a mining lease over the site of the proposed tailings dam. The principal access route to that site is over a road named Helilog Road which traverses an area of Crown land.

3 On 31 January 2022 the first respondent, the Honourable Guy Barnett, in his then capacity as the Minister for Resources, granted MMG a mining lease over Helilog Road and areas extending 100 metres on either side of that road. It is mining lease 6M/2021. It was applied for by MMG pursuant to s 106(1)(b) of the Mineral Resources Development Act 1995 so that the land in question could be used to enable MMG to access other land to which another mining lease related.

4             Bob Brown Foundation Inc, Courtney Hayes and Scott Jordan have applied to this Court for review of the Minister's decision under the Judicial Review Act 2000. Ms Hayes and Mr Jordan are employees of the first applicant, Bob Brown Foundation Inc.

5             At the time of the decision under review, Mr Barnett was the Minister for Resources and in that capacity was responsible for the administration of the Mineral Resources Development Act. On 27 July 2022 he ceased to be the Minister for Resources. In relation to that portfolio he was replaced by another Minister. However he remained in the cabinet as Minister for Energy and Renewables, Minister for State Development, Construction and Housing, and Minister for Veterans' Affairs. The new ministerial appointments were gazetted on 28 July 2022.

6 The subpoena addressed to Mr Barnett was issued on 22 July 2022, while he was still the Minister for Resources. That subpoena should not have been issued without the leave of the Court because of the provisions of s 14(1) of the Crown Proceedings Act 1993. The requirements of that sub- section appear to have been overlooked. The subpoena was issued without leave having been obtained.

7 Section 14(1) of the Crown Proceedings Act provides as follows:

"(1) A subpoena or other process is not to be issued by a court, tribunal or other

authority requiring a Minister to appear, in the Minister's official capacity, to give evidence or produce documents without the leave of the court, tribunal or other authority."

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8 On 25 July 2022, after s 14(1) had been brought to his attention, the applicants' solicitor applied for leave to issue the subpoena to the Minister. By the time that application came before me, Mr Barnett was no longer the Minister for Resources but was still a Minister. The applicants contended that, because he was no longer the Minister for Resources, leave was no longer required. In the alternative, they contended that there were good reasons to grant leave. I was informed by counsel that, in the event that I concluded that leave was both necessary and appropriate, the parties would be content for me to grant leave nunc pro tunc and that the subpoena would then be complied with.

9 The second subpoena, addressed to the Director of Mines, was issued on 25 July 2022. He produced some documents to the Court in response to that subpoena, without taking any objection. However the Minister objected to the applicants inspecting the documents. The objection was made pursuant to r 500B(6) of the Supreme Court Rules 2000.

10           Counsel for the parties made submissions to me in relation to the two subpoenas on 10 October 2022. Mr Turner SC appeared not only for the Minister, but also for the Solicitor-General, who had a right to be heard in relation to the application for leave under s 14.

The need for leave to subpoena the Minister

11 The subpoena required the Minister to appear for the purpose of giving evidence at the final hearing of the judicial review application. Counsel for the applicants relied on the fact that s 14(1) of the Crown Proceedings Act only applies when a subpoena or similar process requires a Minister to appear to give evidence or produce documents "in the Minister's official capacity". He argued that the Minister made the decision under review when his official capacity was that of the Minister of Resources, and that s 14(1) no longer required a grant of leave because he no longer had that official capacity. It was argued that s 14(1) did not apply to former Ministers, or to a Minister who no longer had the official capacity in respect of which his or her evidence was to be given.

12 That submission was misconceived. First of all, the Minister held the position of Minister for Resources at the time when the subpoena was issued. On any view of the scope of s 14(1), it should not have been issued as leave had not been granted pursuant to that sub-section.

13 Furthermore, it is significant that the Minister is still a Minister. The obvious purpose of s 14(1) is to limit the use of subpoenas to Ministers because they are very busy people with important public duties. Section 8A of the Acts Interpretation Act 1931 requires an interpretation of s 14(1) that promotes the purpose or object of that provision to be preferred to one that does not. In my view a Minister whose portfolios change but who remains a Minister in the Government of Tasmania continues to have the official capacity of a Minister within the meaning of s 14(1). That interpretation promotes the purpose or object of the subsection. There is no reason why busy ministers should not be protected against the unrestricted use of subpoenas requiring them to give evidence in cases about portfolios held by them in the past. Thus a subpoena requiring a Minister to appear and give evidence in relation to a decision made in relation to a former portfolio requires that Minister to appear in his or her official capacity as a Minister. If the applicants had sought to issue the subpoena after the cabinet reshuffle of 27 July 2022 rather than before it, leave would still have been required.

To grant leave or not to grant leave?

14           The solicitors for the applicants made written submissions in support of the application for leave. In those submissions at [9] they argued that evidence from the Minister was relevant for four purposes which they summarised as follows:

"(a) To assist the Court to determine with precision which documents were before the First Respondent at the time he made the decision the subject of this proceeding (on 31 January 2022);

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(b)	To support ground of review (f), being an assertion the First Respondent took into account the claimed need of MMG for 'security of access and control' and to explore what security of access and control he intended to facilitate, and whether ongoing protest activities were a catalyst for his decision;
(c)	To support proposed ground of review (l), being an assertion that the Minister's purpose in granting the lease was to thwart ongoing protests on the land the subject of the lease, which is not a purpose contemplated by the Mineral Resources Development Act 1995 ('MRDA'), and to lead evidence from the First Respondent as to his intention;
(d)	To support ground of review (k), being a ground directed to the lack of a rational foundation for the decision."

Documents before the Minister

15           The Minister signed a statement of reasons on 31 January 2022 in which he identified the material considered by him in making findings of fact in relation to the decision under review as follows:

	" The relevant legislation (as summarised in the Minute of 31 January 2022) on the Grant of Application for Lease for Storage and Other Purposes 6M/2021 to MMG Australia Limited from the Director of Mines;
	The Application of 16 September 2021 (as detailed and summarised in the Assessment by MRT [Mineral Resources Tasmania]);
	The information, opinions and assessment contained in the Assessment by MRT of 27 October 2021; and
	The recommendation provided by the Director of Mines in the Minute of 31 January 2022 on the Grant of Application for Lease for Storage and Other Purposes 6M/2021 to MMG Australia Limited."

16          In an affidavit filed on 26 May 2022 the Minister listed five documents that were before him at the time he made the decision, described as follows:

" 1	MINUTE (Revised – Grant of Lease for Storage and Other Purposes 6M 2021 – MMG – Final - MIG22 136.
2	MMG Lease for storage and other purposes 6M 2021.
3	Statement of Reasons – 6M 2021 – MMG.
4	MINUTE – Minister for Resources – Grant of Application for Lease for Storage and Other Purposes – 6 M_2021 – MMG Australia Ltd.
5	Issue Brief – Minister for Resources – Grant of Mine Lease
Application under section 106 of the MRDA – MIG21/1389."

17           On 1 July 2022 Holt AsJ made an order requiring the Minister to "make, file and serve an affidavit identifying and annexing each and every document personally sighted by him in the course of making his decision". In the affidavit filed in compliance with that order, the Minister deposed to having sighted ten documents, which were described as follows:

" (a)	Email from Ms Marnie Peebles, dated 21 January 2022;
(b)	Minute to the Minister for Resources – Grant of Lease for Storage and Other Purposes, 6M/2021 to MMG Australia Ltd, dated 19 January 2022 – 6 pages –

(accompanying (a));

(c) Draft Statement of Reasons (accompanying (a));

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(d)	Draft Mining Lease 6M/2021;
(e)	Email from me to 'Correspondence Barnett' for the attention of Marnie, dated 21 January 2022;
(f)	Email from Ms Marissa Bastion, dated 28 January 2022;
(g)	Issues Brief – Briefing Note for the Minister for Resources – Grant of Mine
Lease Application under section 106 of thte MRDA, dated 27 January 2022 (accompanying (f));
(h)	Minute to the Minister for Resources – Grant of Application for Lease for

Storage and Other Purposes 6M/2021 to MMG Australia Ltd, dated 19 January 2022, marked 'Not Approved' and having Minister's notation (incomplete) (accompanying (f));

(i)        Minute to the Minister of Resources – Grant of Application for Lease for

Storage and Other Purposes 6M/2021 to MMG Australia, dated 31 January 2022;
(j)	Draft Statement of Reasons."

18           Copies of those ten documents are annexed to the Minister's affidavit. The assessment by Mineral Resources Tasmania of 27 October 2021, which the Minister referred to in his statement of reasons, forms part of the minute that is item (b) in the final list. The item referred to as a recommendation in the statement of reasons forms part of the minute of 31 January 2022 that is item (i) in that list. Counsel for the applicants did not suggest that any information or advice contained in any of the ten listed documents was inconsistent with the contents of the Minister's statement of reasons.

"Security of access and control"

19          In the Minister's statement of reasons, in a paragraph under the heading "Other relevant matters", the Minister said the following:

"The applicant [MMG] is required to undertake works within the adjoining Mining Lease ML 6M/2008 [the lease of the tailings dam site] to ascertain the suitability of the site for a proposed TSF [tailings storage facility]. The application area provides the applicant with the security of access and control of the access route to allow for the effective and efficient undertaking of mining operations to be conducted under the permission of that lease." (My emphasis.)

20           Prior to the decision under review, Helilog Road was controlled by a forestry authority named Sustainable Timber Tasmania. MMG had permission from that entity to use Helilog Road. The granting of a mining lease over Helilog Road and adjacent land gave MMG the right to upgrade the road. The possibility of it implementing "engineering measures for any required and approved upgrades of Helilog Road to facilitate access" to the tailings dam site was referred to by the Minister in the preceding paragraph of his statement of reasons. Assuming (without deciding) that the grantee of a mining lease becomes entitled to exclusive possession of the leased land, another consequence of the decision under review was that MMG became entitled to exclude unwelcome visitors from the leased land, or to require them to leave. The applicants contend that the reference to "security of access and control of the access route" referred to the capacity of MMG to inhibit the ability of citizens to protest in the area of Helilog Road.

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Thwarting of protest activities

21           The applicants contend that one of the Minister's purposes in granting the mining lease was to thwart ongoing protests on the land that is the subject of the lease. They contend that the thwarting of protests is not a purpose contemplated by the Mineral Resources Development Act. They have applied to amend their originating application to add a ground of review relating to these contentions. That application is to be dealt with at the hearing of the originating application.

Lack of a rational foundation

22           Ground (k) of the applicants' grounds of review asserts that there was no reasonable basis disclosed in the materials before the Minister upon which he could reasonably have concluded that a lease over Helilog Road should be granted. They contend that the decision under review was so unreasonable that no reasonable person could have made it. In an outline of contentions filed by the applicants' solicitors on 22 July 2022 they contended that a lease was not needed by MMG because Sustainable Timber Tasmania had agreed to access; that the lease was granted for the purpose of thwarting protests on Helilog Road; that the lease to MMG was different from the lease that MMG applied for; and that the Minister had been falsely informed that the lease area was marked out by MMG when it had really been marked out by someone named Steve Scott.

23           There is no reason to think the Minister would be able to give any admissible evidence about the marking out of the area by Steve Scott or anyone else. The evidence before me establishes that he did not ever see the lease application of 16 September 2021, but that the application was summarised in a document that was provided to him. Clearly it would not be appropriate to seek to lead evidence from him as to the original document that he did not see. If the applicants wish to adduce evidence from the Minister in relation to ground (k), it must follow that any such evidence could only relate to the right of MMG to use Helilog Road without a lease and/or a desire to thwart protests.

The course proposed by the applicants

24           The applicants propose that they will call the Minister to give oral evidence about matters that are in dispute. Their proposal is extraordinary. First of all, this is a proceeding in which the evidence in chief of each witness must be given by affidavit, subject to any order to the contrary or any agreement between the parties: Supreme Court Rules, r 458(c). If oral evidence were allowed, the applicants would almost certainty need leave of the Court under s 38(1) of the Evidence Act 2001 to ask questions of the Minister in the nature of cross-examination. It might not be hard for them to establish that his evidence is unfavourable to them within the meaning of s 38(1)(a), but it is likely that robust submissions would be made as to the inappropriateness of a grant of leave. The chances of any evidence given by the Minister being shaken by cross-examination may well be remote.

25           Counsel for the Minister submitted that the subpoena involved an abuse of process because it was "fishing". A party is not entitled to use a subpoena for the purpose of "fishing" in the sense of "endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all": Commissioner for Railways v Small (1938) 38 SR (NSW) 564 per Jordan CJ at 575. There is nothing in the Minister's statement of reasons to suggest that a desire to thwart protest activity on or beside Helilog Road was one of the reasons, let alone the sole reason, for his making the decision under review. The applicants are seeking to use the subpoena process to find out whether they have a case at all in that respect.

26           The applicants could have sought to administer interrogatories examining the Minister as to whether or not the thwarting of protest activities on the leased land played a part in his reasons for the decision under review. They have not sought to administer any interrogatories.

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The submissions of counsel

27 It appears from an email sent to the Minister by a departmental officer on 28 January 2022 that the statement of reasons that he ultimately signed was prepared by another departmental officer, checked by the Deputy Secretary, approved by the Secretary, and submitted to Crown Law for an opinion as to its appropriateness. The Minister was informed by the briefing note of 27 January 2022 that "Crown Law's view is that it reflects the requirements of the MRDA [Mineral Resources Development Act] in respect of assessing and determining an application for a lease for storage and other purposes". The Minister adopted and signed the draft statement of reasons without making any alterations to it.

28           Counsel for the applicants made submissions to the effect that, whilst such a sequence of events was not inherently improper, it was so unusual that significant issues arose as to whether the Minister gave due and proper consideration to the application before making the decision under review. He submitted that the Court was entitled to know what consideration the Minister gave to the application that was before him, and needed to determine whether that consideration was proper, genuine and realistic consideration, or whether he simply rubber-stamped what had come up from the Department.

29           Counsel for the applicants referred me to various cases that establish that it can sometimes be appropriate for a decision-maker to be cross-examined as to the material that he or she relied on and/or his or her reasons for making a decision in respect of which judicial review has been sought: Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162; Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132, 271 FCR 595; EGH19 v Minister for Home Affairs [2020] FCA 692; Rashid v Minister for Immigration and Citizienship [2007] FCAFC 25; Stambe v Minister for Health [2019] FCA 43, 270 FCR 173; Stirling v Minister for Finance [2017] FCA 874, 159 ALD 29.

30           However those cases are to be distinguished from this case, for various reasons. Counsel for the applicants has not suggested that the summary of the lease application of September 2021 was in any way inaccurate or incomplete. There is no reason to think that the available evidence of the documentation available to the Minister is incomplete. Although the Minister, in making the decision under review, apparently simply circled the word "approved", signed below that word, and wrote the date, there is no reason to infer that he paid inadequate attention to the contents of the relevant minute. When an earlier minute was sent to him 19 January 2022, he circled the words "not approved" and sent it back.

31 As I have said, MMG applied for the lease over Helilog Road pursuant to s 106(1)(b) of the Mineral Resources Development Act. That provision entitles a lessee who already has a lease of some

land under that Act to "apply to the Minister for a lease in relation to land… to enable the land to be

used to enable the applicant to access land to which a lease relates". Although the lease of Helilog Road has been referred to as a mining lease, MMG had no desire to do any mining on the land thereby leased. Counsel for the applicant informed me that there is a dispute between the parties as to whether the Minister, in deciding whether or not to grant a lease under s 106(1)(b) for access purposes, is required to consider matters listed in s 78A of the Act which must be considered in relation to an application for a lease of land on which mining is proposed. The applicants contend that the Minister was obliged to consider those matters, and that he should be compelled to attend court to give evidence as to whether he considered them or not.

32           There is a simple answer in relation to that submission. When a statement of reasons has been provided, a failure to refer to particular matters will justify an inference that those matters were not relied upon: East Melbourne Group Inc v Minister for Planning [2008] VSCA 217, 23 VR 605 per Ashley and Redlich JJA at [312]. If the applicants wish to establish that the Minister did not take into account matters that were not mentioned in his statement of reasons, that can be inferred without any need for the calling of the Minister.

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33          In the same case, Ashley and Redlich JJA made observations as to the significance of a statement of reasons. They said this at [226]:

"The giving of reasons… provides 'an effective means of detecting the kind of error

which would entitle the court to intervene'. For a statement of reasons to serve these ends, one would ordinarily rely on what the decision-maker says were the reasons for the decision." (Footnote omitted.)

Conclusion as to leave

34           The words "security of access and control" are somewhat vague. There is nothing in the written material sighted by the Minister that expressly refers to protest activity. The applicants' contentions appear to involve the proposition that the Minister took the words "security of access and control" to refer not just to the rights of a lessee to upgrade the road, but also to the rights of a lessee in relation to unwelcome visitors. To succeed in an argument based on that interpretation of the words, they would need to establish not only that the Minister interpreted them in that way, but also that it was impermissible for him to take the possibility of future protest activity into account, even if he concluded that it was in the public interest for MMG to continue its mining operations, pursue its proposal to build a tailings dam, and have unimpeded access to the tailings dam site via Helilog Road. It is true that protest activity is not mentioned in the Mineral Resources Development Act, but it does not necessarily follow that the danger of disruption of commercial activity by protestors must be an irrelevant consideration.

35           Having regard to the matters discussed above, I concluded that it was extremely unlikely that calling the Minister as a witness would serve any useful forensic purpose. As to possible questioning as to whether he had protest activity in mind when he decided that MMG should be given security of access and control in relation to Helilog Road, I concluded that bearing in mind the other factors weighing against a grant of leave, the chances of the applicants establishing that protest activity was an irrelevant consideration were not sufficiently strong to warrant inconveniencing the Minister by compelling him to give evidence.

The inspection application

36           In or about August 2021 the Minister made a decision granting a mining lease over Helilog Road to MMG, but it was later discovered that certain provisions of the Mineral Resources Development Act had not been complied with. As a result, the Minister and the relevant departmental officers concluded that that first lease was not valid. MMG therefore made a second application on 16 September 2021, which the Minister granted when he made the decision under review on 31 January 2022.

37           MMG's first application was made on 28 April 2021. On 9 June 2021 an officer of Sustainable Timber Tasmania wrote to the Registrar of Mines making submissions in relation to that first application. A redacted version of that letter has been provided to the solicitors for the applicants. The Director of Mines has produced the original correspondence between Sustainable Timber Tasmania and the Registrar of Mines in respect of MMG's first application.

38           The Director of Mines has also produced a minute to the Minister dated 9 August 2021 which includes a detailed assessment of MMG's first application. Again, the solicitors for the applicants have been provided to date with only a redacted version of that document.

39           The principles relating to the setting aside of subpoenas are equally applicable to disputes as to the inspection of documents produced pursuant to subpoenas: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 per Bell P (as he then was) at [80]. A subpoena will be set aside, or inspection will be refused, when the issuing party did not have a legitimate forensic purpose. The test for the existence of a legitimate forensic purpose is that of

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apparent relevance. See Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622, 195 FCR 43 at

[28] – [35] and the authorities cited there by Bromberg J.

40           The applicants are contending that the decision under review was unnecessary and unreasonable because of the arrangements that MMG had in place with Sustainable Timber Tasmania. In my view it is "on the cards" that the documents produced by the Director might shed light on those arrangements and be relevant to contentions of the applicants. Counsel for the Minister submitted that the documents were irrelevant but, without having inspected them, I am not persuaded that they are necessarily irrelevant. I was satisfied that the applicants had a legitimate forensic purpose in seeking access to the documents produced by the Director, and therefore made an order permitting their inspection.