Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd

[2010] NSWCA 353

Reported Decision: 178 LGERA 411

New South Wales

Court of Appeal

CITATION:	Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd & Anor [2010] NSWCA 353 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	9 November 2010
JUDGMENT DATE:	15 December 2010
JUDGMENT OF:	Giles JA at 1; Hodgson JA at 2; Tobias JA at 9
DECISION:	Appeal dismissed with costs [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
CATCHWORDS:	ADMINISTRATIVE LAW – judicial review – exploration licence – renewal of licence – subjective statutory pre-condition to renewal – decision-maker must be satisfied that special circumstances exist justifying renewal over certain area – whether no evidence to support primary judge’s finding that decision-maker was so satisfied – partial transfer of licence – whether document or instrument of transfer between transferor and transferee required under statute to effect transfer – transfer effected by statutory process – whether transferor and transferee signed document setting out terms of proposed new authority before transfer occurred - COSTS – general rule that costs follow the event exceptions to the – public interest – no reason why appellant should have benefit of departure from general rule
LEGISLATION CITED:	Coal Mining Act 1973 Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Mining Act 1992 Mining Regulation 2003 Uniform Civil Procedure Rules 2005
CASES CITED:	Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd & Anor (No 2) [2010] NSWLEC 1; (2010) 172 LGERA 25 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd & Anor (No 3) [2010] NSWLEC 59 Currey v Sutherland Shire Council (1998) 100 LGERA 365 Franklins Limited v Penrith City Council [1999] NSWCA 134 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 270 ALR 228 Manly Council v Hortis [2001] NSWCA 81; (2001) 113 LGERA 321 Oshlack v Richmond River Council (1998) 193 CLR 72
PARTIES:	Caroona Coal Action Group Inc Coal Mines Australia Pty Ltd Minister for Mineral Resources
FILE NUMBER(S):	CA 2010/28363
COUNSEL:	A: Mr B McClintock QC / Ms J Gleeson / Ms F Mahmud 1R: Mr T Bathurst QC / Mr R C Beasley 2R: Mr R Beech-Jones SC / Ms C Spence
SOLICITORS:	A: Environmental Defender's Office 1R: Minter Ellison, Sydney 2R: Crown Solicitor's Office
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 20009/80003
LOWER COURT JUDICIAL OFFICER:	Preston CJ
LOWER COURT DATE OF DECISION:	6 January 2010
LOWER COURT MEDIUM NEUTRAL CITATION:	Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 2) [2010] NSWLEC 1

CA 2010/28363

GILES JA
HODGSON JA
TOBIAS JA

Wednesday 15 December 2010

CAROONA COAL ACTION GROUP INC v COAL MINES AUSTRALIA PTY LTD & ANOR

Judgment

1 GILES JA: I agree with Tobias JA.

2 HODGSON JA: I agree with the order proposed by Tobias JA and with his reasons. I would make the following additional comments.

3 In my opinion, the scheme of Division 2 of Part 7 of the Mining Act 1992 makes it clear that the transfer of authorities is effected, not by an instrument of transfer operating between the holder and the transferee, but by the statutory process there prescribed.

4 The first step is an application made by the holder under s 120, lodged with the Director-General. This section does not require that there be a transfer document accompanying the application, or even in existence: the agreement of the parties to the transfer is signified by the application made by the holder, and the consent of the proposed transferee (required by s 120(2)(b)). I note that even if s 160 did apply to this process, an application signed by the holder (as was the application in this case), accompanied by the consent of the transferee, would be an instrument in writing within s 160.

5 The transfer may then be approved by the Minister under s 121(1)(a). A transfer so approved may then be registered under s 122; and on registration the transferee becomes the holder of the authority. As pointed out by the primary judge, what is registered is the fact of transfer, not a document of transfer.

6 In this case, the application was for transfer of part of the authority, so s 123 applied. This meant that the authority was taken to be cancelled as to the area of the part transferred (s 123(1)(a)), a new authority was taken to have been granted to the transferee (s 123(1)(b)), and s 123(2)(b) required that there be a document setting out the terms of the new authority, signed by the Minister and the transferee.

7 It is plain from the circumstances that the Exploration Licence dated 12 April 2006 was intended by the Minister and the transferee to constitute such a document. It is true that the recitals to that document were not entirely apt, and that the document, in purporting to grant rights for a period of five years from 12 April 2006 (rather than up to 22 February 2011, the date of expiry of the authority part of which was being transferred) was pro tanto ineffectual; but these considerations are substantially outweighed by the circumstances manifesting the intention that the document be the document required by s 123(2)(b) in regard to the part of the authority being transferred. The Exploration Licence did in fact substantially comply with s 123(2)(b): the circumstance that the date of expiry of the authority was not correctly stated did not in my opinion invalidate it (and the contrary was not suggested by the appellant).

8 As stated by Tobias JA, the appellant seized on the words “Before part of an authority is transferred” in s 123(2) to support a contention that the document referred to in s 123(2)(b) had to be signed before a transfer could take place. I agree with Tobias JA that this contention could not succeed in the absence of evidence as to the sequence of events on 12 April 2006. I would in any event not read s 123(2) as prescribing an order of events, rather than merely providing to the effect that a transfer is not effective until the requisite document is signed.

9 TOBIAS JA: On 6 January 2010 Preston CJ of the Land and Environment Court dismissed an application by the appellant, Caroona Coal Action Group Inc, challenging the validity of the renewal by the second respondent, the Minister for Mineral Resources (the Minister), of Coal Authorisation A216 (A216) and its part transfer by the Director-General (the Director-General) of the Department of Mineral Resources (the Department) to the first respondent, Coal Mines Australia Pty Ltd (CMA): Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd & Anor (No 2) [2010] NSWLEC 1; (2010) 172 LGERA 25.

10 The jurisdiction of the Land and Environment Court to hear and dispose of the proceedings is vested in it by s 21C of the Land and Environment Court Act 1979 (the Court Act) and referred to as “Class 8” of its jurisdiction. The appellant appeals to this Court against his Honour’s decision pursuant to s 57(1) of that Act. The appeal is confined to an order or decision of the Land and Environment Court on a question of law.

THE NATURE OF THE APPELLANT’S CHALLENGE

11 In its Amended Points of Claim filed on 28 September 2009 the appellant challenged the validity of the renewal of A216 and its part transfer to CMA on a number of grounds of which only two are presently relevant. Those allegations are to be found in paragraphs 9 and 9A of the Amended Points of Claim with respect to the issue of renewal of A216 and in paragraphs 29 to 31 with respect to the issue of its part transfer to CMA. Those paragraphs are in the following terms;

“9. On 22 February 2006, the Minister for Mineral Resources purported to renew Coal Authorisation 216 for a term expiring 28 February 2011, but did not satisfy himself that special circumstances existed that justify the renewal of the licence over a larger number of units than half the number of units over which the licence was in force when the application for the renewal was made in accordance with s 114(6) of the Mining Act 1992.
9A. In the premises, the purported renewal of Coal Authorisation 216 on 22 February 2006 was invalid and of no effect.
…
29. Further and in the alternative, section 123 of the Mining Act provides that before part of an authority is transferred the Minister and the proposed transferor must sign a document setting out the terms of any proposed amendments to the original authority and the Minister and the proposed transferee must sign a document setting out the terms of the proposed new authority.
30. Coal Authorisation 216 is an authority within the meaning of the Mining Act.
31. The first and second respondents did not sign a document setting out the terms of the proposed amendments of Coal Authorisation 216 or a document setting out the terms of the proposed new authority.”

THE BACKGROUND FACTS

12 The appellant is an incorporated association formed to contest exploration and mining of land in the Caroona district on the Liverpool Plains in New South Wales. Its members are landholders in the Caroona district whose properties are located within the area of exploration licence EL6505 (EL6505) as well as members of the wider community. CMA is a subsidiary of BHP Billiton Plc.

13 EL6505 covers an area of approximately 344km² on the Liverpool Plains, northwest of the Hunter Valley (the Caroona coal exploration area). The area so covered was formerly part of that covered by A216 issued in 1980 under the former Coal Mining Act 1973 and successively renewed.

14 The area of A216 as originally granted was 19,750 km². As a result of a number of part cancellations, by July 1990 the area of A216 had been reduced to 8,556 km².

15 On 21 August 1992 the Coal Mining Act 1973 was repealed and replaced by the Mining Act 1992 (the Act). By virtue of cl 4(1) of Schedule 6 to the Act, A216, being an authorisation granted under the Coal Mining Act 1973 and in force immediately before the commencement of the Act on 21 August 1992, was taken to be an exploration licence granted under the Act. An exploration licence is “an authority” as defined in the Dictionary to the Act.

16 On 24 April 1993 A216 was renewed for a further term until 24 April 1998. The total area renewed, which included the Caroona coal exploration area, was about 3,329 km². It was renewed because of the potential of that area for coal resources development.

17 On 20 March 1998 the Director-General, on the advice of the Department’s Principal Geologist, applied to renew A216 for a further 5 year term. Renewal was sought for a total of 3,252.64 km². On 24 June 1998 the Minister approved that renewal for a further term expiring on 24 April 2003. The validity of that renewal was unsuccessfully challenged before the primary judge but there is no appeal from his Honour’s rejection of that challenge. However, it will be necessary in due course to refer to one aspect of the Ministerial Briefing pursuant to which the Minister accepted the recommendation that A216 be renewed for that further term.

THE RENEWAL OF A216 IN 2006

18 The following facts relating to the renewal of A216 in 2006 are taken from his Honour’s judgment in respect of which there is no challenge. The primary judge recited the relevant facts as follows:

“22 On 3 February 2003, a Departmental Minute from Geological Survey reviewed A216 and recommended its renewal. The Minute was signed by the Department’s Geologist, Principal Geologist and Acting Assistant Director. The Minute recorded that the area of A216 had been renewed and reduced in size for successive periods until 24 April 2003. The Minute recorded that the current area of A216 was approximately ‘294’ km² within the Gunnedah Basin and is separated into four areas. Three of the areas were located to the north-west of the township of Gunnedah and one to the south. The area of A216 stated in the Minute of ‘294’ km² may be a typographical error because subsequently, in the renewal of A216, the area of A216 is stated to be ‘2,940’ km².
23 The Minute noted that the Department had undertaken a program of exploration during the then current five year period (1998-2003) and stated that the results of the program ‘provided a greater understanding of the geology, structure, coal geology and coal quality of the Caroona area and provided the basis for the creation of a detailed geological model’. The Minute noted that ‘[t]here has been recent interest in the Gunnedah Coalfield by companies looking to gain a resource allocation in this area to ensure short to medium term supply for coal’.
24 The Minute noted that in the next five years, Coal and Petroleum Geology proposed to undertake an update of the computer database, computer 3D modelling, field mapping and further exploration as needed to meet the Department and Government’s requirements. The Minute concluded that:
‘It is recommended that A216 be renewed for a period of five (5) years for the full area (294 kms²). Renewal of the Authorisation is required to continue coal exploration and resource identification of the area.
The Department holds the Authorisation in order to explore for, identify and protect the State’s coal resources prior to their allocation to the mining industry.’
25 The Geological Survey Minute was the basis of and was attached to a Departmental submission to the Director-General recommending that the Director-General on behalf of the Department apply for renewal of A216. The Director-General submission stated, similarly to the Geological Survey Minute:
‘There has been recent interest in the Gunnedah Coalfield by companies looking to gain a resource allocation in this area to ensure short to medium term supply of coal. Geological Survey therefore request that Authorisation A216 be renewed for a 5 year period (Tab B). This will allow for further investigation and assessment of the coal resources in this area.’
26 On 17 March 2003, the Director-General approved the recommendation and signed and dated it. On 21 March 2003, the Director-General on behalf of the Department applied for renewal of A216 for a further term of 5 years. The area of A216 sought to be renewed was ‘294’ km². This would seem to continue the typographical error made by Geological Survey and the correct area, according to the later renewal documents, should be 2,940 km².
27 On 17 April 2003, notice was given of the receipt of the application for renewal of A216 in the NSW Government Gazette No 74.
28 The application for renewal of A216 was held in abeyance pending the Minister undertaking a process of inviting expressions of interest for the award of an exploration licence over the Caroona coal exploration area.
29 On 1 August 2005, the Minister issued the Caroona Expression of Interest Information document inviting companies to lodge an expression of interest (‘EOI’). In the Introduction, the document stated, in part:
‘The Minister for Mineral Resources in New South Wales, Australia, invites Expressions of Interest for the awarding of an exploration licence in respect of the Caroona coal exploration area pursuant to the Mining Act 1992 … The Expression of Interest is for an area of approximately 350 sq km which is expected to contain large underground resources of export quality thermal coal.
The area comprises part of Authorisation 216 (Figure 2), which is currently held by the Department of Primary Industries. The successful applicant will be awarded coal exploration rights over the area for an initial period of 5 years, pursuant to the Mining Act 1992. ‘
A number of companies have approached the Government, seeking access to coal resources in the area. The Minister for Mineral Resources has decided to call for Expressions of Interest for the awarding of an exploration licence over the area.

Interested parties are required to submit an Expression of Interest to the Department of Primary Industries with details of an exploration and development program.

…

The Minister will select a company/companies or consortium to whom exploration rights over the area will be awarded for an initial period of five years. The continued tenure of the exploration licence during the initial period and any subsequent renewal period will be subject to compliance with agreed commitments and title conditions. The Minister is not bound to accept any of the proposals.’
30 Four companies submitted an EOI, including BHP Billiton in December 2005. BHP Billiton’s EOI was through its wholly owned subsidiary CMA.
31 On 20 January 2006, the Department’s Minerals Development section made a Ministerial Submission to the Minister recommending that the Minister announce CMA as the successful EOI applicant for the exploration licence over the Caroona coal exploration area. The Ministerial Submission referred to A216 and the process by which the recommended successful EOI applicant should be awarded an exploration licence over the Caroona coal exploration area:
‘The subject Caroona coal exploration area comprises part of Authorisation 216 under the Mining Act 1992, which is currently held by the Department of Primary Industries. Renewal of this exploration title is pending. It is proposed that the successful EOI applicant be awarded the exploration licence over the subject Caroona coal area by way of part transfer of Authorisation 216.
Awarding of the exploration licence could occur 4-6 weeks after the announcement of the successful EOI.’
32 On 25 January 2006, the Director-General signed and submitted a Ministerial Briefing to the Minister on the issue of renewal of A216. The terms of the briefing note are important and warrant setting out in full:
‘Renewal of an Exploration Licence

Issue:
Renewal of Authorisation No 216 (Act 1973) held by the Director-General, NSW Department of Primary Industries on behalf of the Crown.

Background:
Authorisation No 216 (A216) was granted to the Director-General, Department of Mineral Resources (now DPI) on 9 May 1980, and was renewed for subsequent periods until 24 April 2003.

The original area of A216 covered some 8556 square kilometres in the Narrabri and Gunnedah regions. Various allocations to mining companies since grant have reduced the area to about 2940 square g kilometres.

A valid application for the renewal of A216 was received on 21 March 2003. The renewal process was, however, held in abeyance pending the calling for expressions of interest in the Caroona area, which forms part of A216. This was done so that the title could be renewed for five years at the same time as the announcement of a successful tenderer, and part of A216 could then be transferred to the successful entity for the maximum five year term.

A copy of section 114 of the Mining Act1992 , referred to in this briefing, is described on the Additional Information 1.

Comment:
DPI holds authorisations and exploration licences in order to explore, identify and protect the State’s coal resources prior to allocation to the mining industry. Recently there has been increased interest in the Gunnedah Coalfields by companies looking to gain coal resource allocations in this area.
The department has undertaken extensive exploration of A216 since 1980. Coal Advice has recommended renewal of A216 for 5 years. This will allow for further investigation and assessment of the coal resource.

Once the renewal of A216 is approved the Caroona area can be Part Transferred to the successful tenderer.

All statutory requirements have been met.

Recommendations:
1. In accordance with section 114(1)(a) of the Mining Act 1992 , the Minister renew Authorisation 216 (Act 1973) effective from 1 March 2006, for a period of five (5) years, subject to the terms and conditions as set out in the attached Instrument of Renewal document.
2. The Director-General NSW DPI, on behalf of the Crown, and the Minister sign the Instrument of Renewal document and return it to the Maitland Minerals Titles office for registration.’
33 The ‘Additional Information 1’ referred to was an extract of the full text of s 114 of the Mining Act, including subsections (3) and (6).
34 On 17 February 2006, the Minister wrote to BHP Billiton advising that he had selected CMA as the successful EOI applicant for the awarding of the exploration licence over the Caroona coal exploration area for a period of up to five years and inviting CMA to apply for the exploration licence for that area.
35 On 22 February 2006, the Minister initialled and dated the Ministerial Briefing that had been signed and dated by the Director-General on 25 January 2006 recommending renewal of A216. On the same day, the Minister signed and dated the Instrument of Renewal of A216 that had been enclosed with the Ministerial Briefing. The Instrument of Renewal stated that the licence was renewed for a further term until ‘28 February 2011’. The area of A216 was stated to be ‘2940’ km².
36 On 3 March 2006, notice of the renewal of A216 was published in the NSW Government Gazette No 30. The area of A216 was stated to be ‘2940’ km². The renewal was stated to be “effective on and from 22 February 2006” for a further term until “28 February 2011”.

19 The gazettal of the renewal was required by s 136 of the Act which relevantly provided as follows:

“As soon as practicable after:
(a) …
(b) …
(c) an authority is granted, renewed, transferred or cancelled,
the Director-General is to cause notice of that fact to be published in the Gazette.”

20 The renewal of A216 until “28 February 2011” was an error as the maximum period for which an authority could be renewed was one not exceeding five years. The appellant challenged the validity of the renewal on the basis that there had been a breach of the relevant statutory provision as to the maximum term of renewal. That was rejected by his Honour and there is no appeal from that decision. The correct date is 22 February 2011.

THE RELEVANT STATUTORY PROVISIONS RELATING TO THE RENEWAL

21 Part 7 of the Act sets out provisions relating to the renewal, transfer and cancellation of authorities. In relation to the renewal of an authority the relevant provisions are contained in Division 1 of Part 7 and were as follows:

“ 113 Applications
(1) The holder of an authority may, from time to time, apply for the renewal of the authority.
(2) …

114 Power of Minister in relation to applications
(1) After considering an application for the renewal of an authority, the Minister:
(a) may renew the authority, or
(b) may refuse the application.
(2) ...
(3) The period for which an authority is renewed may not on any one occasion exceed:
(a) 5 years in the case of an exploration licence …
(b) ...
(4) On renewing an authority, the Minister may amend any of the conditions of the authority and may include further conditions in the authority.
(5) The area of land over which an authority is renewed may differ from the area of land over which the renewal of the authority is sought, but not so as to include any land that was not subject to the authority immediately before the renewal.
(6) The number of units over which an exploration licence may be renewed is not to exceed half the number of units over which the licence was in force when the application for the renewal was made unless the Minister is satisfied that special circumstances exist that justify the renewal of the licence over a larger number of units.
(7) ...


115 …

116 …

117 Authority to have effect until application dealt with
(1) If an application for the renewal of an authority is not finally dealt with before the date on which the authority would otherwise cease to have effect, the authority continues to have effect, in relation only to the land to which the application relates, until the application is finally disposed of.
(2) …

118 Date from which renewal of authority has effect etc
(1) The renewal of an authority takes effect on the date on which it is renewed or on such later date as may be specified in the renewal.
(2) …

119 …”

THE PARTIAL TRANSFER OF A216

22 Again, there is no challenge to the primary judge’s findings of fact with respect to the partial transfer of A216. However, given the nature of the argument on the appeal it will be necessary to elaborate upon certain of the documents referred to by his Honour in the following paragraphs. His Honour stated the unchallenged facts relevant to the partial transfer of A216 in the following terms:

“ The partial transfer of A216
37 On 7 March 2006, BHP Billiton emailed the Department concerning the proposed conditions for the Caroona exploration licence. On 8 March 2006, the Department replied with a modified version of proposed conditions for the exploration licence.
38 On 17 March 2006, the Director of CMA wrote a letter to the Director-General headed “Part Transfer of Authorisation 216”. The letter stated:
‘Coal Mines Australia Limited, a wholly owned subsidiary of BHP Billiton, accepts the proposed part transfer of Authorisation No. 216 to it as the successful Expression of Interest applicant for the Caroona coal exploration area as defined in the Caroona Expression of Interest Information document.’
39 On 31 March 2006, the Department’s Minerals Development section made a submission to the Director-General recommending the Director-General approve and submit Form 12 (application for approval of the transfer of an authority) and Form 13 (application for registration of the transfer of an authority) to enable the part transfer of A216 of the Caroona coal exploration area to CMA to proceed. In the Background section, the Director-General submission stated:
‘Coal Mines Australia Limited, a member of the BHP Billiton Group, was the successful Expression of Interest applicant for the Caroona Coal Exploration Area. The Premier announced on 17 February 2006 that the company would be awarded an Exploration Licence for five years. This will be achieved administratively by Part Transfer of Authorisation 216 which is held by the Director-General, NSW Department of Primary Industries on behalf of the Crown.

This process requires:
Form 12 Application for Approval of the Transfer of an Authority (attached), and Form 13 Application for Registration of the Transfer of an Authority (attached) to be completed and signed by the holder of the authority (the Director-General).

Once signed, forms will be forwarded to Coal & Petroleum Titles, Maitland for completion of administrative requirements and registration of Part Transfer.’
40 On 5 April 2006, the Director-General (per Peta Johannessen) wrote a letter to CMA with the heading “Part Transfer of Authorisation 216 (Act 1973) from Director-General NSW Department of Primary Industries on behalf of the Crown to Coal Mines Australia Limited Caroona Project Exploration Licence No 6505 (Act 1992)”. The letter stated in part:
‘I refer to the application for part transfer of this authority.
Enclosed is a copy of the proposed new authority to be offered to your company. As you aware, it is proposed that the original of this document is to be signed by a relevant officer of your company in the presence of Ian MacDonald, Minister for Mineral Resources. Could you please check this copy and advise as soon as possible if your company is prepared to accept this offer, or if there is anything that requires attention.’
41 The proposed new authority enclosed with the letter was entitled ‘Exploration Licence’ and was in the form of a deed between the Minister and CMA.
42 On 6 April 2006, a Departmental email from Mr Garth Holmes, Manager, Minerals Development noted that the final exploration licence document with conditions was to be ready ‘for the handover ceremony and signing by the Minister (presently scheduled for Wednesday 12 April ~ 9.30am at Gunnedah).’
43 On 6 and 7 April 2006, various changes were made to the deed that was the exploration licence.
44 On 10 April 2006, the Director-General signed and lodged with the Director-General a completed Form 12: Application for Approval of the Transfer of an Authority and a completed Form 13: Application for Registration of the Transfer of an Authority. The forms were recorded as being received at 9.30am on 10 April 2006.
45 On 11 April 2006, Ms Peta Johannessen, of the Northern Titles section of the Department, made a submission to both the Director-General and the Minister concerning approval and registration of the part transfer of A216. The terms of the submission are important and warrant setting out in full:
‘ APPROVAL AND REGISTRATION OF PART TRANSFER OF AN AUTHORITY
ISSUE:
Application for approval and registration of the part transfer of Authorisation 216 (Act 1973) from Director-General NSW Department of Primary Industries on Behalf of the Crown to Coal Mines Australia Limited, a member of the BHP Billiton Group.
BACKGROUND:
Exploration Licence 6505 (part transferred from Authorisation 216) is situated approximately 28 kilometres west north west of Quirindi and covers an area of 344 square kilometres.
Coal Mines Australia Limited, a member of the BHP Billiton Group, was the successful Expression of Interest applicant for the Caroona Coal Exploration Area. The Premier announced on 17 February 2006 that the company would be awarded an Exploration Licence for five years.

PRESENT POSITION:
All requirements have been met.

The Manager, Coal and Petroleum Titles has delegation to approve and register the part transfer of an exploration licence.

RECOMMENDATIONS:
1. Pursuant to the provisions of Section 121(1)(a) and 123(1)(b) of the Mining Act 1992, the Minister approve the transfer of that part of Authorisation 216 (Act 1973) from Director-General NSW Department of Primary Industries on Behalf of the Crown to Coal Mines Australia Limited, a member of the BHP Billiton Group, and determine the new lease include the conditions set out in the attached document.
2. The new exploration document is signed at the tagged location.
3. Pursuant to Section 122(3) of the Mining Act 1992, the Director-General register Coal Mines Australia Limited (ACN 062 855 270) as the holder of Exploration Licence No. 6505 (Act 1992).’
46 On 12 April 2006, the Department’s Manager, Coal and Petroleum Titles, by delegation from and on behalf of the Minister and the Director-General, circled the word ‘approved’ on the submission and initialled and dated it 12 April 2006. The delegate’s approval had a twofold operation: first, as the Minister’s delegate, it operated as the Minister’s approval of the transfer of part of A216 under s 121(1)(a) of the Mining Act and secondly, as the Director-General’s delegate, it operated to register the transferee, CMA, as the holder of EL6505 under s 122(3) of the Mining Act.
47 The submission also has a handwritten asterisk placed at the end of recommendation 2 and a footnote for the asterisk stating ‘Document signed by Minister at handover ceremony in Sydney’.
48 On 12 April 2006, the exploration licence EL6505 was executed by CMA and the Minister. According to the asterisk and note on the submission, the Minister executed the licence at the handover ceremony in Sydney. The exploration licence executed was in the form of the deed between the Minister and CMA setting out the terms of the authority which had been previously discussed and agreed.
49 On 5 May 2006, notice of the transfer of part of A216 was published in the NSW Government Gazette No 61. The notice stated that A216 had been transferred in part to CMA and the transfer was registered on 12 April 2006. The notice then stated:
‘Pursuant to Section 123 of the Mining Act 1992:
(1) Authorisation No. 216 has been cancelled as to the area transferred; and
(2) Exploration Licence No. 6505 has been granted to COAL MINES AUSTRALIA LIMITED over the area transferred for a period until 28 February 2011.’
The notice dated that the area part transferred was an area of about 344 km².”

THE RELEVANT STATUTORY PROVISIONS RELATING TO THE TRANSFER

23 Division 2 of Part 7 of the Act deals with transfer of authorities. Its relevant provisions were as follows:

“ 120 Applications
(1) The holder of an authority may apply for approval of the transfer of the authority to some other person.
(2) An application for approval of the transfer of an authority:
(a) must be accompanied by the appropriate lodgement fee, and
(b) must be accompanied by the consent of the proposed transferee, and
(c) must be accompanied by the particulars prescribed by the regulations, and
(d) must be lodged with the Director-General.

121 Power of Minister in relation to applications
(1) After considering an application for approval of the transfer of an authority, the Minister:
(a) may approve the transfer in accordance with the application, or
(b) may refuse the application.
(2) Without limiting the generality of subsection (1), an application may be refused if the proposed transferee has been convicted of an offence against this Act or the regulations or any other offence relating to mining or minerals.
(3) In approving the transfer of an authority, the Minister may, subject to this Act, direct that any of the conditions of the authority be amended or that further conditions be included in the authority.

122 Registration of transfers
(1) The transferor or transferee of an authority for the transfer of which the Minister has given approval may apply for registration of the transfer.
(2) An application for registration of a transfer:
(a) must be lodged with the Director-General, and
(b) must be accompanied by the appropriate lodgement fee.
(3) On receipt of such an application, the Director-General must register the transferee as the holder of the authority, unless registration of the transfer is prohibited by section 124.
(4) On registration of a transfer, the transferee becomes the holder of the authority and the authority becomes subject to the amended conditions or further conditions referred to in any relevant direction under section 121.

123 Partial transfers
(1) If part of an authority is transferred under this Division:
(a) the authority (in this section referred to as the original authority ) is taken to have been cancelled as to the area of the part transferred, and
(b) an authority over the part transferred (in this section referred to as the new authority ) is taken to have been granted to the transferee for the period ending on the date of expiry of the original authority and to include the conditions determined by the Minister in granting approval of the transfer, and
(c) if the Minister considers that it is necessary to do so as a result of the transfer, the conditions to which the original authority is subject may be amended in the manner determined by the Minister in granting approval of the transfer.
(2) Before part of an authority is transferred:
(a) the Minister and the proposed transferor must sign a document setting out the terms of any proposed amendments of the original authority, and
(b) the Minister and the proposed transferee must sign a document setting out the terms of the proposed new authority.

124 …”

ELABORATION OF [44] AND [48] OF THE PRIMARY JUDGE’S REASONS

24 At [44] of his reasons, his Honour referred to the completion and execution by the Director-General of Forms 12 and 13. As the terms of those forms are of some relevance given the manner in which the appellant argued the appeal, it is necessary to reproduce the relevant parts of each of those documents.

25 Form 12 was as follows:

26 Form 13 was as follows:

27 At [48] the primary judge referred to EL6505 executed by CMA and the Minister on 12 April 2006 (the Deed). The document was, as his Honour noted, in the form of a deed and was headed “MINING ACT 1992” under which appeared the words “EXPLORATION LICENCE”. After setting out the parties, the document continued in the following terms:

“WHEREAS
(a) in conformity with the Act application was made for an exploration licence over the lands hereinafter described; and
(b) all conditions and things required to be done and performed before granting an exploration licence under the Act have been done and performed NOW THIS DEED WITNESSETH that in consideration of the observance and performance of the covenants contained in this Deed the Minister in pursuance of the provisions of the Act DOES HEREBY demise and licence to the licence holder ALL THAT piece or parcel of land described in the Exploration Area annexed hereto for the purpose of prospecting for the minerals prescribed as Group Nine .
TO HOLD the said land together with any appurtenances thereon subject to:
(a) such rights and interests as may be lawfully subsisting therein or which may be reserved by the Act at the date of this Deed; and
(b) such conditions, provisos and stipulations as are contained in this Deed UNTO the licence holder from and including the date of this Deed for the initial period of Five (5) years for the purpose as stated and for no other purpose.” (Emphasis in original)

28 The appellant relied on that part of the Deed which I have set out in the preceding paragraph in support of the proposition that notwithstanding that the Director-General clearly intended to effect a partial transfer of A216 to CMA, what the Minister had done in the Deed was to grant an exploration licence to CMA pursuant to Part 3 of the Act which deals with exploration licences and, in particular, with the original grant thereof. Thus s 13(1) provides that any person may apply for an exploration licence while s 22 empowers the Minister, after consideration of an application for such a licence, to either grant such licence to the applicant or to refuse the application.

29 It was submitted that paragraph (a) of the Recitals to the Deed referred to an application for an exploration licence within the meaning of s 13(1) and that paragraph (b) of the Recitals contemplated the granting of such a licence. Further, the operative part of the Deed whereby

“the Minister in pursuance of the provisions of the Act DOES HEREBY demise and license to the licence holder …”

purported to constitute the grant of an exploration licence pursuant to s 22(1) of the Act.

30 Originally the appellant sought to argue that EL6505, being an exploration licence purported to be a grant by the Deed, was invalid as certain provisions of Part 3 of the Act had not been complied with. However, as his Honour noted at [5] of his reasons, this category of challenge fell away at the hearing as neither the Minister nor CMA contended that EL6505 was the grant of an exploration licence under Part 3 of the Act. Rather, their case was that EL6505 was a product of a transfer of part of A216 under Part 7 of the Act and that its validity stood or fell on that basis. Accordingly, his Honour considered there to be no utility in addressing the appellant’s first category of challenge.

31 In its written submissions on the appeal CMA sought to support the primary judge’s decision on the alternative ground that in the event that it was found that the part transfer of A216 was invalid, nevertheless it could be supported as an original grant of an expiration licence under Part 3. As this argument required a notice of contention and as CMA declined to raise it as such, its submissions on this issue were properly abandoned.

THE ISSUES ON THE APPEAL

32 Subject to one matter to which I will refer later in these reasons, the appellant confined its challenge to the primary judge’s decision to two grounds. The first was that in purporting to renew A216 the Minister was in breach of s 114(6) of the Act in that there was no evidence that he was satisfied that special circumstances existed that justified the renewal of that authority over the number of units in question. It was not contended by CMA or the Minister that s 114(6) did not apply to the renewal.

33 The second ground challenged the validity of the partial transfer of A216 essentially on two bases. The first was that the Deed purported to be a grant of an exploration licence pursuant to Part 3 of the Act in that it did not purport to be a transfer by the Director-General as the holder of A216 of part of that authority to CMA. In other words, there could not be a valid partial transfer without there being an instrument of transfer. The second and related basis of invalidity was that there was a breach of s 160(1) of the Act which was in the following terms:

“ 160 Interest in authority to be created by instrument in writing
(1) A legal or equitable interest in an authority may not be created or disposed of except by instrument in writing.”

34 It was submitted that neither the Deed nor any other document constituted a written form of transfer by which the Director-General’s legal interest in A216 was disposed of to CMA.

THE PRIMARY JUDGE’S DECISION
(a) The challenge to the renewal of A216

35 At [52] the primary judge set out s 114(6) which, for convenience, I repeat:

“The number of units over which an exploration licence may be renewed is not to exceed half the number of units over which the licence was in force when the application for the renewal was made unless the Minister is satisfied that special circumstances exist that justify the renewal of the licence over a larger number of units.”

36 It was common ground that this provision applied to the present case. The appellant submitted that there was no evidence that the Minister had satisfied himself prior to the renewal of A216 on 22 February 2006 that there existed special circumstances that justified the renewal of that authority over the relevant area. Consequently there was no validly existing authority available to be partially transferred. It was further submitted that there was nothing to indicate that the Minister had turned his mind to what might constitute “special circumstances” for the purposes of the subsection.

37 I interpolate here that the appellant conceded on the appeal that the information contained in the Ministerial Briefing extracted by the primary judge at [32] of his reasons (and reproduced at [18] above) was capable of constituting “special circumstances” within the meaning of the subsection. However, it was maintained that there was no evidence that the Minister was satisfied that those special circumstances relevantly existed.

38 CMA and the Minister submitted that the onus was on the appellant to establish that the Minister did not form the required state of satisfaction for the purposes of s 114(6) and that that onus had not been discharged. At [60] the primary judge stated the question for his determination in those terms:

“The question then becomes: has the [appellant] established that the Minister failed to form the requisite mental state of satisfaction for either the 1998 renewal or 2006 renewal of A216? In my opinion, the [appellant] has not so established.”

39 At [64] of his reasons, his Honour stated:

“In relation to the 2006 renewal, it is important to recall that the Minister was aware that the renewal of A216 was taking place at the same time, and in part in order to facilitate, the transfer of part of A216 to the successful EOI applicant, CMA. The Minister’s knowledge at the time of the 2006 renewal was based not only on the information supplied in Ministerial Briefings for the renewal of A216 but also for the transfer of part of A216.”

40 At [65] the primary judge, after referring to other matters of which the Minister had been made aware, noted that the Ministerial Briefing signed by the Director-General on 25 January 2006 was forwarded to him under cover of a document entitled “Brief talking points”: this suggested that the Minister may also have been briefed orally. According to his Honour, he was informed by the Ministerial Briefing that

“(a) A216 was in force until 24 April 2003;
(b) a valid application for renewal of A216 was received on 21 March 2003;
(c) the area of A216 has been reduced since the original grant to an area of about 2,940 km²;
(d) the process of renewal of A216 was held in abeyance pending the calling for Expressions of Interest in the Caroona coal exploration area which forms part of A216. This was done so that the authority could be renewed for five years at the announcement of a successful tenderer and part of A216 could be transferred to the successful entity for the maximum five year term;
(e) the Department holds authorisations and exploration licences in order to explore, identify and protect the State’s coal resources prior to allocation to the mining industry;
(f) there has been increased interest in the Gunnedah Coalfields by companies looking to gain coal resource allocations in the area;
(g) the Department has undertaken an extensive exploration of A216 since 1980;
(h) Coal Advice has recommended renewal of A216 for five years. This will allow for further investigation and assessment of the coal resource;
(i) once the renewal of A216 is approved the Caroona coal exploration area can be part transferred to the successful tenderer;
(j) the recommendation of the Ministerial Briefing was that the Minister renew A216 subject to the terms and conditions as set out in the attached Instrument of Renewal which stated the area of A216 to be about ’2940‘ km²;
(k) Section 114 of the Mining Act is a relevant statutory provision for the renewal of A216 and a copy of s 114 is described in Additional Information 1. The full text of s 114 was quoted in Additional Information 1, including the full text of subsection (6); and
(l) ‘all statutory requirements have been met’.“

41 After referring to the fact that on 17 February 2006 the Minister informed CMA that it had been selected as the successful EOI applicant for the awarding of the relevant exploration licence and that on 22 February 2006 he initialled the Ministerial Briefing and dated it the same day he signed and dated the Instrument of Renewal of A216, the primary judge made the following findings:

“68 In these circumstances, the inference should be drawn that the Minister was satisfied under s 114(6) of the Mining Act that special circumstances existed that justified the renewal of the licence over the same area that was in force when the application for renewal was made. The special circumstances stated in the Ministerial Briefing which the Minister approved, related to being able to transfer part of A216 to CMA as the successful EOI applicant and retain the balance of A216 for the Department to explore, identify and protect coal resources prior to their allocation to the mining industry. The Minister’s attention was specifically drawn to s 114 of the Mining Act and its terms were quoted in the attachment. Although unlike the 1998 renewal there was not a specific reference to subsection (6), it was sufficient that the Minister’s attention was drawn to: the relevance of s 114; the full terms of the section including subsection (6); the area over which A216 was to be renewed was the same size as the area over which A216 was in force when the application for renewal was made; and particular information about A216, which the Minister could consider constituted special circumstances for the purpose of s 114(6) of the Mining Act.
69 The onus rests on the [appellant] as the challenger of the Minister’s decision to renew A216 to establish that the Minister did not form the required mental state of satisfaction under s 114(6). The [appellant] can discharge this onus by reference to the documentary material evidencing the decision-making process if that material is sufficient to allow the Court to draw the inference that the Minister did not form the required mental state of satisfaction. However, having regard to all of the documentary evidence, I do not consider that it would be proper to draw the inference that the Minister did not form the mental state of satisfaction required by s 114(6) of the Mining Act. Having regard to all of the documentary evidence, I also do not consider that the [appellant] has established that the inference should be drawn that the Minister was misled by the statement in the Ministerial Briefing that ‘all statutory requirements have been met’. Viewed in context, I do not consider that this statement meant that the Minister need not turn his mind to the requirement of s 114(6).
70 Apart from relying on the documentary evidence, there are other judicial mechanisms that the [appellant] could have invoked to establish that the Minister did not form the required mental state of satisfaction. Interrogatories could have been directed to the Minister with a view to eliciting the relevant evidence. Other powers of the Court could be called in aid in order to establish the relevant facts, including seeking a direction under Part 4 r 4.3 of the Land and Environment Court Rules 2007 that the Minister furnish a written statement setting out the Minister’s reasons for the decision. These judicial mechanisms were noted in Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154; (2009) 166 LGERA 436 at [99] and [100]. The [appellant] did not invoke these judicial mechanisms. The [appellant] has, therefore, been unable to displace the inference that should properly be drawn from the documentary evidence that the Minister did form the mental state of satisfaction required under s 114(6) of the Mining Act.
71 For these reasons, I reject the [appellant’s] challenge that A216 was renewed in either 1998 or 2006 in breach of s 114(6) of the Mining Act.”

(b) The challenge to the partial transfer of A216

42 At [96] the primary judge noted that the appellant claimed that EL6505 was not a valid transfer of part of A216 for two reasons. First, there was no document or instrument of transfer effecting the transfer of part of A216 from the Director-General on behalf of the Crown as transferor and CMA as transferee. Second, EL6505 expired after A216’s expiry date in breach of s 123(1)(b) of the Act. His Honour rejected both of these grounds and the second is no longer pressed on the appeal.

43 At trial the appellant submitted that in order to transfer an authority under the Act, whether in whole or in part, there needed to be a document or instrument of transfer from the transferor to the transferee. It would appear that this submission was based on s 160(1) of the Act, although his Honour did not refer to that provision. However, it was accepted on the appeal that that provision did form the basis of the appellant’s submission to which reference has been made.

44 The appellant thus submitted that the Deed, in form and content, was the grant of an exploration licence. Although it was an instrument in writing, it was not, either in form or substance, a transfer or disposition because, amongst other things, the Director-General as the proposed transferor of the authority was not a party to it and its recitals as well as its operative provisions were framed in terms of the grant of a licence rather than the partial transfer of an existing licence or authority. This being so, it was submitted that there was never any transfer of part of A216 with the result that the registration of CMA as the holder of EL6505 was void.

45 CMA and the Minister submitted that the appellant had misconstrued the statutory regime regulating the transfer of authorities under the Act. In particular, there was no statutory requirement for a document or instrument of transfer between a transferor and transferee that needed to be registered. In particular, the documents referred to in s 123(2) served a different purpose than a document or instrument of transfer.

46 It was submitted, and accepted at least for the purposes of the appeal, that s 123(2)(a) was inapplicable to the present case. It was also submitted but not conceded by the appellant, that s 123(2)(b) was complied with because EL6505 was a document setting out the terms of “the new authority” as defined in s 123(1)(b) and had been signed by the Minister and the proposed transferee, CMA. Accordingly, all the requirements of Division 2 of Part 7 of the Act had been complied with so as to effect the transfer of part of A216.

47 At [101] the primary judge agreed with the submissions of CMA and the Minister and held that there was no statutory requirement, either express or implied, in Division 2 of Part 7 of the Act for a document or instrument of transfer between a transferor and transferee to effect a valid transfer of an authority whether in whole or in part.

48 After referring to the provisions of s 120(1) and (2) and noting that the requirements of those provisions had been satisfied, his Honour referred (at [104]) to s 123. With respect to the steps alleged to have been taken regarding the requirements of that provision, his Honour made the following findings:

“105 In this case, on 12 April 2006, the Minister by his delegate, first, approved pursuant to s 121(1)(a) of the Mining Act the transfer of part of A216 in accordance with the application of the Director-General and, secondly, pursuant to s 123(2)(b) of the Mining Act determined that the terms of the new authority be as set out in EL6505. According to the handwritten note on the approved briefing and as had been planned (see email of the Manager, Minerals Development of 6 April 2006), the Minister signed EL6505, being the deed setting out the terms of the proposed new authority for the purposes of s 123(2)(b), at the handover ceremony on 12 April 2006. As also had been planned (see letter from Director-General to CMA dated 5 April 2006), CMA also signed EL6505 on 12 April 2006. The Minister and the Director-General did not need to comply with s 123(2)(a) of the Mining Act as there were no proposed amendments of the original authority of A216.”

49 At [106] his Honour noted that the next step in the statutory scheme after the Minister had approved the transfer of the authority was its registration under s 122. Registration causes the transfer of an authority approved by the Minister under s 121(1) to become effective: an authority is thus “transferred” on registration. His Honour then noted at [108] that the act of registration involves making a record as provided by s 159(1)(b) of the Act and clause 22 of the Mining Regulation 2003 (the Regulation).

50 Given the provisions of s 123(1)(a), in the case of a transfer of part of an authority s 159(1)(b) required a record to be kept of the cancellation of the original authority to the extent of the area of that part transferred and of the grant of the new authority over that part.

51 At [109] his Honour made the following observations:

“It is to be noted that there is no requirement in s 122(1) or (2) of the Mining Act for an application for registration of a transfer of an authority to include a document or instrument of transfer between the transferee and the transferor and there is no requirement in s 122(3) or s 159 of the Mining Act or cl 22 of the Mining Regulation for the Director-General to register any such document or instrument of transfer. The references in s 122 to registration of ‘the transfer’ is a reference to registration of the act or event of transfer of an authority approved by the Minister and not a document or instrument of transfer .”(Emphasis added)

52 At [110] and [111] the primary judge reiterated the relevant steps taken up to and including the publishing in the Government Gazette on 5 May 2006 of notification of registration of the transfer on 12 April 2006. His Honour then referred to the effect of s 122(4) being, relevantly, that the transfer approved by the Minister becomes effective on its registration by the Director-General under ss 122(3) and 159 of the Act. If the transfer is of part of an authority, the partial transfer becomes effective as provided for in s 123(1) and the new authority over the part transferred is taken to have been granted to the transferee for the period ending on the expiry date of the original authority: s 123(1)(b).

53 At [112] his Honour summarised the position in the following terms:

“In this case, therefore, on registration on 12 April 2006 by the Director-General of the transfer of part of A216 approved by the Minister:
(a) CMA became the holder of the new authority of EL6505, pursuant to s 122(4);
(b) A216 was taken to have been cancelled as to the area of the part of A216 transferred, in accordance with s 123(1)(a); and
(c) EL6505 being the new authority over the part of A216 transferred was taken to have been granted to CMA for the period ending on the date of expiry of the original authority of A216, in accordance with s 123(1)(b) of the Mining Act.”

54 His Honour therefore concluded (at [113]) that nowhere in the statutory scheme for the transfer of authorities was there a requirement for a document or instrument of transfer between a transferor and transferee to effect the transfer of an authority in whole or in part. The transfer of part of A216 was required to be, and would be effective if, carried out in accordance with Division 2 of Part 7 of the Act the provisions of which did not include any requirement for the execution and registration of a document or instrument of transfer between the Director-General as transferor and CMA as transferee.

55 For the foregoing reasons his Honour rejected the appellant’s claim that the partial transfer of A216 that resulted in the grant of EL6505 was in breach of Division 2 of Part 7 of the Act and was invalid by reason of the absence of a document or instrument of transfer between the Director-General and CMA effecting the partial transfer.

THE RESOLUTION OF THE ISSUES IN THE APPEAL
(a) The s 114(6) Issue

56 In its written submissions the appellant referred to the matters relied upon by the primary judge at [64], [65] and [68] in support of his conclusion that an inference should be drawn that the Minister was satisfied under s 114(6) of the Act that special circumstances existed within the meaning of that provision. It was submitted that in reaching that conclusion his Honour had gone beyond what had been contended for by CMA and the Minister, namely, that the appellant had not discharged its onus of proof that the Minister did not form the required state of satisfaction. None of the matters relied upon by the primary judge to support that inference, so it was submitted, provided any sound basis for concluding that the Minister had turned his mind to the requirements of s 114(6).

57 It is true, as the appellant submitted, that the primary judge went beyond what was necessary for the determination of the present issue in finding, as a matter of inference from the documentary evidence, that the Minister did form the mental state of satisfaction required under s 114(6). That was a finding of fact and it could only be challenged on an appeal confined to a decision on a question of law if there was no evidence capable of supporting it: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 270 ALR 228 at [59] per French CJ; at [90] and [91] per Hayne, Heydon, Crennan and Kiefel JJ.

58 However, the correct and only relevant question was that posed by the primary judge at [60] of his reasons, namely, has the appellant established that the Minister failed to form the requisite mental state of satisfaction for the purposes of s 114(6). This required the appellant to establish a negative. However, his Honour went further and made a positive finding of fact that was strictly unnecessary for the purpose of disposing of the issue that had been pleaded at paragraphs 9 and 9A of the appellant’s Amended Points of Claim (see [11] above).

59 In oral submissions the appellant alleged three errors of law with respect to his Honour’s finding. The first was asserted to be a no evidence finding upon the basis that a finding of no evidence was a question of law (which clearly it is). It was submitted that his Honour’s finding at [69] that having regard to all the documentary evidence, it would not be proper to draw the inference that the Minister did not form the mental state of satisfaction required by s 114(6) was, as I understand the appellant’s submission, not open to him.

60 The second error of law was that his Honour indirectly, inappropriately and erroneously applied the presumption of regularity. The appellant relied upon the last sentence of [70] of the primary judge’s reasons, which I have extracted at [41] above.

61 The third error of law, based upon what his Honour said at [69] of his reasons, was predicated upon the proposition that it was not sufficient to show that a state of mental satisfaction had been reached or a consideration taken into account by simply referring to the provision or the items which, if the decision-maker had turned his mind to the issue, may have justified a state of satisfaction. Reliance was placed upon the decisions of this Court in Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 375; Franklins Limited v Penrith City Council [1999] NSWCA 134 at [30] and [35]; Manly Council v Hortis [2001] NSWCA 81; (2001) 113 LGERA 321 at [40], [41] and [54].

62 In my opinion none of these errors have been established. As to the second, no proper basis exists for asserting that the primary judge applied the presumption of regularity. He did not use that expression and the expressions he did use are incapable of being construed as being an implicit application of the presumption.

63 As to the third alleged error, his Honour did not say that it was sufficient as a matter of law under s 114(6) to simply set out the section. He did not confine himself in his reasoning process to the fact that the section was attached to the Ministerial Briefing. Rather, he relied upon a conglomeration of facts to which reference was made by his Honour at [65] (see [40] above) and which he considered sufficient to justify the drawing of a positive inference that the Minister had formed the relevant mental state of satisfaction.

64 The authorities relied upon and to which reference has been made at [61] above support the proposition (which is really one of fact, not law) that where it is necessary to establish affirmatively that a decision-maker held a particular state of mind or took into account a specific pre-condition to the exercise of power, it is normally insufficient to merely point to material before the decision-maker which demonstrates no more than that he or she was aware of the issues relevant to his or her decision or which, if taken into account, would satisfy the relevant pre-condition.

65 If the present appeal was one in which the Court could consider for itself whether, on the evidence, the Minister had the necessary state of satisfaction, it might be arguable that he did not. On that question, I have no view one way or the other. But such an approach is not available on this appeal. Being confined to a question of law, if otherwise a relevant issue, the only question for this Court was whether there was no evidence to support the primary judge’s finding that the Minister was satisfied that special circumstances existed within the meaning of s 114(6). For the reasons indicated, in my view, the appellant has not so demonstrated.

66 The foregoing also disposes of the first alleged error of law asserted by the appellant. But in any event it asks the wrong question. His Honour went further than was necessary, as I have already noted. The correct issue was whether the appellant could establish on the balance of probabilities that the Minister had not turned his mind to the provisions of s 114(6).

67 As the appellant has failed to establish that there was no evidence capable of supporting the primary judge’s inference that the Minister did form the relevant mental state of satisfaction, it must logically and inevitably follow that it has failed to establish, the onus being upon it, that the Minister did not form that mental state of satisfaction. In fact, the appellant did not really attempt to directly prove that negative proposition except by way of the following collateral attack.

68 The appellant first submitted that the primary judge erred in law by relying at [77] of his reasons upon the fact that a copy of the full terms of s 114 of the Act had been attached to the Ministerial Briefing. This, so his Honour found, drew the Minister’s attention to the requirement of that section. It was contended that this was insufficient to enable a finding that the Minister directed his mind to s 114(6).

69 I have already dealt with this submission at [63] above in conjunction with the appellant’s submission that there was no evidence to support his Honour’s finding that the Minister did have the necessary state of satisfaction. But the present submission needs to be considered in the context of what the primary judge said at [69]. There he noted the correct question for his determination and acknowledged that the appellant’s onus of establishing the relevant negative proposition could be discharged by reference to the documentary material evidencing the decision-making process if that material was sufficient to allow the Court to draw the inference that the Minister did not form the required mental state of satisfaction. However, his Honour was not prepared on ascertaining all the documentary evidence to draw the necessary inference. That was a conclusion based on findings of fact and is thus immune from attack on this appeal.

70 I would also draw attention at this point to the primary judge’s observations at [70] of his reasons (see [41] above) that, apart from relying on the documentary evidence, there were other judicial mechanisms that the appellant could have invoked to establish that the Minister did not form the required mental state of satisfaction. For example, interrogatories could have been directed to the Minister with a view to eliciting the relevant evidence or a direction could have been sought under Part 4 r 4.3 of the Land and Environment Court Rules 2007 that the Minister furnish a written statement setting out the Minister’s reasons for the decision. However, the appellant did not invoke these mechanisms which, had it done so, may have assisted its case. Accordingly, it was unable to discharge its onus of establishing on what little evidence it had that the Minister did not form the required mental state of satisfaction.

71 The appellant nevertheless submitted that the statement in the Ministerial Briefing that “all statutory requirements have been met” misled the Minister by, in effect, telling him that he need not direct his mind to the requirements of s 114, being Additional Information 1 to the briefing paper and, in particular, to s 114(6). In the last sentence of [69] of his reasons, the primary judge rejected this submission and his doing so does not bespeak any legal error.

72 As was submitted on behalf of CMA, for the appellant to succeed as a matter of law in establishing that the Minister did not turn his mind to the requirements of s 114(6), it was necessary to demonstrate that the evidence could only compel one conclusion, namely, that the Minister did not turn his mind to the requirements of s 114(6) or, if he did, he did not hold the necessary mental state of satisfaction. In other words, in order to establish that the primary judge had erred in law in failing to find that the Minister did not form the relevant mental state of satisfaction required by s 114(6), the appellant had to convince this Court that the only finding available to his Honour was that the Minister did not consider that issue.

73 In my view the primary judge made a positive finding for the reasons set out at [68] as to the Minister’s state of mind. Even if he was wrong in so finding, [69] of his reasons was directed to the question his Honour correctly posed for himself at [60]. He held that the appellant had not discharged the onus of establishing on the balance of probabilities that the Minister did not form the relevant mental state of satisfaction. This was a perfectly orthodox method of fact finding. No error of law is involved in his approach or in his declining to find that the appellant had discharged its onus. Its challenge to his Honour’s finding with respect to the s 114(6) issue should be rejected.

(b) The Partial Transfer Issue

74 In its written submissions the appellant contended that the effect of the Deed was to constitute a purported exercise of the power to grant an exploration licence under s 22 of the Act and was not, and could not be construed as, an attempt to partially transfer A216 to CMA. This must be so if only for the reason that the Director-General as transferor was not a party to that document. It was further submitted that the Deed did not, therefore, purport to be a document setting out the terms of the proposed new authority in compliance with s 123(2)(b). Rather, it was expressed to confer rights upon CMA and not merely to set out the terms of a “proposed new authority”.

75 It was further submitted that once an authority is taken to have been granted under s 123(1)(b) of the Act, then in the same way as an exploration licence granted under s 22 is required to be in writing under s 28, so also must the new authority be in the form required by that provision. The Deed did not fulfil that requirement.

76 The appellant’s written submissions next contended that his Honour failed to have regard to the absence of any documentary or other evidence demonstrating that there was, in fact, a transfer of rights under A216 by the Director-General to CMA. It was submitted that the Deed was inconsistent with any such transfer of rights. There was no evidence of any express act or event of transfer.

77 It was submitted that none of the provisions of ss 120, 121, 122, 123(2) or 124 of themselves gave rise to an act or event of transfer. It was contended that “the transfer” must be a distinct act or event and not merely a state of affairs arising from the Minister’s approval of an application to transfer or from the registration of the transfer.

78 In oral submissions the appellant reiterated its contention that the Deed did not constitute a partial transfer of A216. Thus the relevant issue for the Court’s determination was whether there was an instrument of transfer as required by s 160(1) of the Act. It was submitted that there was no such instrument although it was conceded that the documentary material established that it was the clear intention on the part of the Director-General and the Minister that there be a partial transfer of A216 pursuant to Division 2 of Part 7 of the Act. The contention, as I understand it, was that that intention was never given effect and could not be given effect in the absence of a document of transfer that complied with s 160(1).

79 During the course of argument it was put to the appellant that the documents comprising Forms 12 and 13 together with the consent of CMA of 17 March 2006 referred to at [38] of his Honour’s reasons (and recorded at [22] above) were sufficient to constitute an instrument of transfer within the meaning of s 160(1). Furthermore, when taken together with the document set out at [45] of the primary judge’s reasons (and also extracted at [22] above), the approval by the Director-General’s delegate on 12 April 2006 of the recommendation contained therein constituted an act or event of transfer which satisfied the provisions of Division 2 of Part 7 of the Act.

80 In this respect it was conceded by the appellant that each of these documents, and particularly Forms 12 and 13, were instruments in writing within the meaning of s 160(1).

81 Nevertheless the response of the appellant was that none of these documents gave rise to an act of transfer of the Director-General’s rights under A216 to CMA. One had to comply with the statutory scheme and, in particular, s 160(1). The documents mentioned referred to EL6505 which was the new exploration licence. But, EL6505 was not created by a combination of Forms 12 and 13 and the approval document signed by the Director-General’s delegate. Rather, it was created by the Deed which was not an instrument of transfer as the Director-General was not a party to it and, in any event, it purported to be an original grant by the Minister under Part 3 of the Act.

82 The essence of the appellant’s argument therefore, was that even if Division 2 of Part 7 contemplated an act or event that gave rise to a transfer, s 160(1) required an instrument of transfer or disposition by which the transferor’s interest in the authority was disposed of to the transferee. A mere act or event of transfer was insufficient to satisfy the statutory scheme.

83 With respect to s 160(1) the CMA submitted first, that the documents to which I have already referred and which were signed by the Minister’s delegate, when taken with the consent to the transfer signed on behalf of CMA, constituted instruments in writing within the meaning of s 160(1). When taken in conjunction with the relevant statutory provisions including the approval of the Minister, they had the relevant legal effect of disposing of the relevant part of the Director-General’s interest in the authority to CMA. Second, it was submitted that in any event s 160(1) has no application to the statutory scheme set out in Division 2 of Part 7 which, in effect, contains its own code as to how a transfer or part transfer is to be effected. There is a transfer by force of the statute which obviates the necessity for a transfer by an instrument in writing.

84 In this context it is to be noted that s 160(1) requires that a legal or equitable interest in an authority may not be disposed of except by instrument in writing. In other words, it is the instrument in writing which effects the relevant disposal. In the present case it is the statutory provisions which effect the relevant transfer, leaving no room for the operation of s 160(1).

85 Once the relevant statutory provisions of Division 2 of Part 7 are complied with, and which are specific to a transfer or part transfer of an authority from the holder to a third party, it follows that the general provisions of s 160 have no work to do. This is not to say that s 159(1)(b) has no application but it merely imposes upon the Director-General an obligation to cause a record to be kept of every renewal or transfer of an authority under the Act including under Division 2 of Part 7.

86 It may be a moot question as to whether the holder of an authority has a legal or equitable interest therein. The holder has certain statutory rights under an authority including, relevantly, the right pursuant to s 29(1) to prospect on the land specified in the authority for the relevant group or groups of minerals specified in the exploration licence. These are statutory rather than contractual rights. That is not to say that the holder of an authority may not enter into a transaction that may involve the disposal of a legal or equitable interest in an authority. The terms of s 161(1) clearly contemplate that there may be a legal or equitable interest in the authority. The subsection provides that the Director-General is to keep a register of legal and equitable interests in authorities and s 161(2) provides that any person claiming a legal or equitable interest in an authority may apply for registration of that interest.

87 However, in the case of the transfer of the whole or part of an authority, s 159(1)(b) requires the Director-General to record every authority that is, relevantly, transferred. A comparison of s 159 with s 161 seems to indicate that the legislature sought to differentiate between an authority that is granted, renewed, transferred or cancelled under the Act on the one hand and an authority in respect of which a legal or equitable interest therein is sought to be created or disposed of on the other.

88 Furthermore, the cancellation of a part of an authority may be said to involve the disposal of a legal or equitable interest therein. Such a cancellation is required by s 159(1)(b) to be recorded. Yet clearly, such a cancellation is not required to be effected by an instrument in writing in view of the provisions of s 123(1)(a) which provide that where part of an authority is transferred under Division 2 of Part 7, the authority is taken to have been cancelled as to the area of the part so transferred. In other words, the statute operates to cancel that area to which the authority related pre-transfer.

89 Equally, the effect of s 123(1)(b) is that where there is a part transfer of an authority, the part transferred is taken to have been granted to the transferee. There is, in effect, a deemed grant of that part of the authority with the consequence that a new authority is created which attracts the rights and duties referred to in Division 4 of Part 3 of the Act. The creation of that new authority is effected by the statute and by the statute alone. To apply the provisions of s 160(1) to a part transfer of an existing authority would be inconsistent with the statutory scheme embodied in s 123.

90 Accordingly, in my view where a transfer or part transfer of an authority is effected pursuant to Division 2 of Part 7, s 160(1) has no part to play in giving effect to that statutory process. Furthermore, s 122 contains its own code with respect to the registration of transfers including a part transfer. As s 161 is clearly linked to s 160 with respect to the registration of a legal or equitable interest in an authority which has been created or disposed of by an instrument in writing pursuant to s 160(1), it follows that those general provisions have no application to the specific provisions of s 122 which govern the registration of a transfer of an authority.

91 Accordingly, a transfer or part transfer is a creature of the statute. Nowhere in Division 2 of Part 7 is there any requirement that the transfer be effected by an instrument in writing. On the contrary, the only documentation required is that referred to in ss 120(2) and 123(2).

92 As I have already noted, it is common ground that s 123(2)(a) has no application to the present case. It requires a document to be signed by the Minister and the proposed transferor. Section 123(2)(b) requires a document to be signed by the Minister and the proposed transferee which sets out the terms of the proposed new authority. The new authority in the present case was that contained in the Deed which was stated to be an exploration licence and which contained the terms of that licence. It was not suggested that the Deed as signed between the Minister and CMA did not contain the terms of the proposed new authority being EL6505. It therefore complied with s 123(2)(b).

93 Those parts of the recitals and the operative provisions of the Deed upon which the appellant relies to support the submission that the Deed did not effect a transfer but, on the contrary, purported to constitute an original grant under Part 3 of the Act, were otiose and did not detract from the Deed being a document setting out the terms of the proposed new authority within the meaning of s 123(2)(b). This is made clear by the terms of the recommendation in the document extracted by the primary judge at [45] of his Honour’s reasons (see [22] above). Those recommendations required the approval of the Minister or his delegate, which was forthcoming.

94 Paragraphs 1 and 2 of the recommendation refer to an attached document which, clearly, was the Deed ultimately signed by the parties on the same day as the ”handover ceremony” referred to at [47] of his Honour’s reasons.

95 In my opinion the primary judge was correct to reject the appellant’s submission that the relevant transfer could only be effected by an instrument in writing. Although his Honour did not refer to s 160(1), his conclusion at [113] that nowhere in the statutory scheme for the transfer of authorities was there a requirement for a document or instrument of transfer between the transferor and the transferee to effect the transfer of an authority either in whole or in part, was clearly correct. I would therefore reject the appellant’s challenge to his Honour’s finding that the partial transfer of A216 was valid.

THE TIMING POINT

96 In its written submissions on the appeal the appellant sought to rely on the chapeau of s 123(2) which, relevantly, requires the Minister and proposed transferee to sign a document setting out the terms of the proposed new authority “[b]efore part of an authority is transferred”. It was approved and/or registered since it all took place on the one day but the order in which it occurred was not the subject of evidence. It was submitted that his Honour did not consider, and there was no evidence upon which he could have found, that the Deed was signed before part of A216 was transferred.

97 This point was not elaborated upon in the appellant’s oral submissions in chief until it was drawn to the attention of its senior counsel who was asked whether the point was still pressed. He ultimately responded that it was. However, it is clear from the Amended Points of Claim that there was no allegation that the transfer was invalid upon the basis that there was a non-compliance with the chapeau of s 123(2).

98 A consideration of the transcript of argument before the primary judge indicates that in a rather indirect way the point was raised. His Honour (at Black 30), when referring to s 123(2)(b) said to senior counsel for the appellant:

“As you rightly say, before part of an authority is transferred, … the Minister must sign a document setting out the terms, so clearly these steps 673 [a reference to a document in the agreed bundle] forward is to get him to a point where he can sign a document setting out the terms of the proposed new authority.”

99 Senior counsel’s response was to assert that although that was what the Department was thinking, they provided the wrong document to the Minister, this being a reference to the recitals and the operative part of the Deed.

100 Shortly prior to the statement of his Honour referred to above, senior counsel for the appellant asserted that

“attention hasn’t been given to the opening words of subs (2) which says before part of an authority is transferred, (a) and (b) the Minister must do these things.”

101 The point was taken up by senior counsel for CMA in his submissions at trial (at Black 54) where his Honour made reference to the handwritten asterisk on the Approval document (and referred to in his Honour’s reasons at [47]) as recording an event that had occurred prior to the Minister’s delegate “exercising his approval”. Senior counsel for CMA responded that there was no pleading challenging the sequence of events. He then made the point that in any event if there was a potential problem with timing the onus lay on the appellant to demonstrate on the balance of probabilities that the authority was transferred prior to the Minister and CMA signing the Deed.

102 However, it is clear that the evidence did not address the sequence in which the relevant events took place on 12 April 2006. It was not suggested that his Honour’s recitation of what occurred on that date at [105] of his reasons constituted a finding as to the order in which the relevant events occurred. Nor does it appear to have been submitted to his Honour by the appellant that in fact the signing of the Deed occurred subsequently to the authority being transferred. As I have indicated, it was common ground that there was no evidence as to the sequence in which the various acts or events detailed by his Honour took place.

103 In the foregoing circumstances, there being no evidence as to the sequence in which the relevant acts or events occurred, the appellant could not have discharged the onus of establishing on the balance of probabilities that there had been a breach of the timing requirement of s 123(2).

COSTS

104 At [47] of its written submissions, the appellant submitted as follows:

“In the event that the appeal is not allowed the appellant seeks an order pursuant to rule 42.1 of the Uniform Civil Procedure Rules 2005, that the usual rule that costs follow the event should not apply on the basis that these proceedings have been brought in the public interest: Oshlack v Richmond River Council (1998) 193 CLR 72 at [134], [136], [143].”

105 No attempt was made to elaborate on this bare submission in oral argument. A similar application had been made to the primary judge who, in his substantive judgment, had reserved the question of costs. In a detailed and highly researched judgment of 29 April 2010, his Honour rejected that application and ordered the appellant to pay each of CMA’s and the Minister’s costs including the costs of the application the subject of that judgment: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd & Anor (No 3) [2010] NSWLEC 59. No appeal was filed in that matter asserting any error of law on his Honour’s part.

106 There may be some doubt as to whether the public interest costs principle applies to an appeal by an unsuccessful litigant who asserts that the original proceedings have been instituted and prosecuted in the public interest. We were not referred to any authority on that issue. As I have said, the appellant did not elaborate in oral argument on [47] of its written submissions.

107 I can see no reason why the appellant should have the benefit of a departure from the usual rule that the costs of the appeal should follow the event. The primary judge did not consider that the usual rule should be relaxed with respect to the trial and gave cogent reasons to support his decision on that issue. I am of the same view with respect to the costs of the appeal.

CONCLUSION

108 The appellant has challenged the primary judge’s findings that the renewal of A216 was valid as was the transfer of part of that authority to CMA. His Honour dismissed the appellant’s challenges to the validity of each of the renewal and the transfer and in my view the submissions of the appellant that he erred in law in so doing should be rejected.

109 In the foregoing circumstances, I would propose that the appeal be dismissed with costs.

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