Cazaly Iron Pty Ltd v Minister for Resources & Ors

[2008] HCATrans 155

[2008] HCATrans 155

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P42 of 2007

B e t w e e n -

CAZALY IRON PTY LTD

Applicant

and

MINISTER FOR RESOURCES

First Respondent

HANCOCK PROSPECTING PTY LTD AND WRIGHT PROSPECTING PTY LTD AND HAMERSLEY RESOURCES LTD

Second Respondents

Application for special leave to appeal

KIRBY J
HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 18 APRIL 2008, AT 10.25 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR R.M. EDEL, for the applicant.  (instructed by DLA Phillips Fox)

MR R.M. MITCHELL, SC:   If the Court pleases, I appear with MS K.H. GLANCY, for the first respondent.  (instructed by State Solicitor’s Office for Western Australia)

MR N.J. YOUNG, QC:  I appear with MR J. GARAS for the second respondents.  (instructed by Allens Arthur Robinson)

KIRBY J:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, the application turns on two issues.  One is a question of construction of the Mining Act 1978 (WA), namely, the ambit of section 111A(1)(c)(ii). I will come back to it, your Honours. It is at page 223 of the volume of the first volume of the applicant’s materials, the page numbers being at the top of the page. Your Honours, the second is a question of procedural fairness and may I come to that also in due course.

Could I just say, however, in relation to that second point that notwithstanding the suggestions to the contrary in the respondent’s summaries, we would submit the case does not involve either, on this aspect, many facts or overturning findings of fact in any normal sense of the term.

Could I come first to the issues.  Your Honours, the Mining Act provides for a number of mining tenements.  That is a term defined by section 8 which your Honours will see at page 23 of that document.  They include, most relevantly, an exploration licence, a retention licence and a mining lease.  An exploration licence is found, or the power to grant one is found in section 57 at page 93 ‑ ‑ ‑

KIRBY J:   Which one did the second respondent hold before the courier failed to deliver?

MR JACKSON:   An exploration licence.

KIRBY J:   I see.

MR JACKSON:   Your Honours, secondly, a retention licence which is section 70B, page 140.

KIRBY J:   What were you seeking, an exploration licence or a mining ‑ ‑ ‑

MR JACKSON:   An exploration licence.

KIRBY J:   I see.

MR JACKSON:   The third thing, your Honours, is a mining lease which is section 71, page 154.

KIRBY J:   Can I understand they are all mining licences, but they are mining licences of different kinds?

MR JACKSON:   Yes, your Honour.  The exploration licence is really what its name conveys.  A retention licence is really what the respondents should have had, in our submission, something that allows the retention of grounds so that at a future time it can be mined and, thirdly, a mining lease which tends to indicate a more prompt mining of the area.

KIRBY J:   But presumably their licence would have been renewed if the courier had got it to the official mining registrar on time.

MR JACKSON:   Presumably, your Honour.  Could I just say, this was a licence which of course had been extended for many, many years.  That appears from Justice Buss at page 401.  Could I say that, hardly surprisingly, the currency of tenures in Western Australia is something readily available publicly and much observed and as you will have seen, that the failure to renew brought about four applications by different parties, including the second respondents themselves, to obtain mining tenements in respect of the land.  We were first.  We applied for an exploration licence and, your Honours ‑ ‑ ‑

KIRBY J:   You were in on the Monday following the failure to delivery the courier’s message by the Friday?

MR JACKSON:   Well, your Honour, the failure to renew this.  Could I just say about it, your Honours, that we were not the – there were four people altogether applied for mining tenements in a short time.

KIRBY J:   I am only thinking of the explanation the Minister gave that it was disproportional to the error that had led to the predicament that he was seeking to cure by very large powers.

MR JACKSON:   The grounds on which he relied appear at page 43, paragraph 50 of the application book.  In essence, they come down to two things.  One is that the resources should be maintained for exploitation in the future.  That is the first and second grounds amount, with respect, to much the same thing.  The second was a concept of fairness, fairness really simply being that he would have done the same for us if the positions had been reversed.

Now, your Honours, if the termination of our application in limine, as it were, meant that we lost the priority we would have had if in the end we had obtained an exploration licence - your Honours, I do not need to go to the provisions, but they are sections 67(1) and 76. Could I come then to the provision itself, section 111A(1)(c) which your Honours will see is set out at page 223. Your Honours will see that subsection (1) provides, relevantly, that:

The Minister may…

terminate an application for a mining tenement before the mining registrar or the warden has determined, or made a recommendation in respect of, the application…

if in respect of the whole or any part of the land to which the application relates –

(c)the Minister is satisfied on reasonable grounds in the public interest that –

(i)       the land should not be disturbed; or

(ii)     the application should not be granted –

Now, your Honours, dealing with the ambit of the provision could I say these things.  One is that the provision is concerned with the early termination of an application in relation to the whole or part of the land, the subject of a particular application.  Paragraph (c)(i) deals with cases where “the land should not be disturbed”.  Paragraph (c)(ii) deals with termination of the application on the ground that in the public interest “the application should not be granted” in respect of the whole or part of the land.

I will come to an interpretation of that in just a moment, but may I just say, if your Honours go to page 213 of the application book you will see that the examples given in the affidavit of Mr Burton demonstrate, really, both types of cases, for example, land should not be disturbed - Nos 15 and 18 are indications of that kind - and cases of other public interest one can see in Nos 10, 25 and 29.

The point we would seek to make, your Honours, is that whilst the public interest that is contemplated by paragraph (c)(ii) is the conferral of a power to be exercised in the public interest, it is to be exercised in relation to the land and providing some reason why the land should not be the subject of an application.

HAYNE J:   I am sorry, why?  Because of the words, “if in respect of the whole or any part of the land” is ‑ ‑ ‑

MR JACKSON:   That is part of it. What I was going to say is that one also sees the proposition we are making, and if I could just conclude, in a sense, by saying this, it does not apply to cases where the application should be terminated simply so that another miner can have the land. Your Honours, that view, in our submission, is supported by the point we would seek to make about two other matters, firstly the presence of section 111A(1)(d).

Your Honours will see that 111A(1)(d) enables the Minister to exercise the power if:

a person who in relation to the land was formerly the lessee of a mining lease the term of which has expired . . . has subsequently made a late renewal application and the Minister, being satisfied that the requirements of that expired mining lease and of this Act in relation to that lease had been substantially observed (other than as to the timing of an application for renewal) . . . determines that the renewal application should be approved and grants that renewal.

You will see the definition in subsection (2) of a “late renewal application”.  The presence of that provision, in our submission, is important because by it the legislature has provided for, in one case and one case only, a specific circumstance in which a power to terminate an application for a mining tenement can be exercised where it is made over land the subject of a mining tenement which has lapsed because the renewal application has been made late.

KIRBY J:   One presumes that must have been an event that happened that led to the insertion of that provision in there.

MR JACKSON:   Well, it was a particular event – one can see that, but that having been said, your Honours, in the legislation the legislature has limited the power to do so to cases where the mining tenement in question was a mining lease.  This is a case, your Honours, it is mining leases only to which that applies.  This is, in our submission, a case where the language of ‑ ‑ ‑

KIRBY J:   Could I ask you what is your answer to the suggestion that to read down (c) because of (d) is to read down the grant of a power in very large terms to a person who is a minister and who therefore is responsible to the Parliament for the decision that he makes.

MR JACKSON:   What I would say about that is first this, that if one is looking at what is contemplated by paragraph (c) - it is that the Minister is given a power in an area which is very significantly regulated by a number of steps which may be taken and at the end the Minister has a power to grant or refuse an application, steps that are to be taken.  This, however, is a power which is to be exercised in limine, as it were, to stop those procedures taking placing.

Now, your Honours, that is something which takes away rights otherwise given by the statute and whilst one of course looks at the term “public interest” and says that is capable of being a wide expression and one can understand that it is perfectly applicable to cases that are the ridiculous ones such as someone applying for land opposite Parliament House or courts and things of that kind ‑ ‑ ‑

KIRBY J:   Yes, but we have had cases, say, in the migration area where ministers have public interest discretions and this Court has always been respectful of the very large powers of the Minister, precisely because it is given to a minister who is accountable to Parliament.

MR JACKSON:   Your Honour, I accept that.  What I am seeking to say, however, is that this is a case where if one looks at a number of features of the Act one sees that the more likely view of the power is that it is not able to be used for the purpose for which it was used now.

HAYNE J:   What is the construction you are urging?  Are you saying that in no case could an interest of the kind now in question be extended?

MR JACKSON:   Yes, your Honour, terminated under that provision.

HAYNE J:   Terminated under that.

MR JACKSON:   Yes, your Honour.  One reason for saying that is ‑ ‑ ‑

HAYNE J:   It is not an Anthony Hordern type argument, is it, where the specific power is engaged and you have to comply with the specific conditions?

MR JACKSON:   Your Honour, perhaps I should answer that by saying not quite.  What I am seeking to say is first of all that the presence of paragraph (d) in relation only to one class of case, one class of tenement, that being a mining lease, is significant in the interpretation and where there are specific limitations on the exercise of the power.

HAYNE J:   By cutting down public interest?

MR JACKSON:   Yes, your Honour, by cutting down the ambit of the power in the preceding paragraph, meaning by that that it is not a power to be exercised in respect of late renewals of other applications.  That is one thing.  The second thing is that there are other provisions of the Act, and I have referred, amongst other things, to the provision for retention licences which are the appropriate modes to be adopted in cases where what was sought to be done was to keep land forever, as it were, until it was ready to be mined or thought appropriate to be mined and that militates against giving a broad power, a broad interpretation, to paragraph (2).

Could I just say, your Honours, that the reasons of the Court of Appeal in relation to the ambit of this provision can be seen at page 64, paragraphs 91 to 94.

HAYNE J:   Just before you do that, going to your last version of the application for leave, ground 1.3 is what you have been addressing, is it not?

MR JACKSON:   Yes, that is so, your Honour.

HAYNE J:   You put it no higher there than militate it against.  You are advancing an argument which is much stronger and more definite, are you not?

MR JACKSON:   With respect, your Honour, no.  What I am saying is that the presence of paragraph (1)(d) militated – perhaps it is a question of what militated means – but what we would say is that they erred because it militated the presence of paragraph (d) – it militated against the construction they adopted, militated strongly.

KIRBY J:   Let us have it very clearly, you are contending that there was no power in the Minister to act as he did in this case?

MR JACKSON:   That is so, your Honour.

KIRBY J:   So you really have three arguments, no power, if power misuse of the power in this case and, thirdly, breach of procedural fairness?

MR JACKSON:   Yes.  Your Honour, the first really go back to the same matter, I think.

HAYNE J:   The “no power” argument as framed now is not one previously advanced, is it?

MR JACKSON:   It is, your Honour, yes.  Your Honour will see at page 64, paragraphs 91 to 94 and you will see paragraph 94 rejecting the argument.  The point I would seek to make is this, and your Honours will see ‑ ‑ ‑

KIRBY J:   Expressio unius gets another run.

MR JACKSON:   What I was going to say about that, your Honour, is this.  If one looks at the paraphrase of Houssein in paragraph 91, of course the “expressio unius” approach is to be applied with care.  Of course its application should be justified from the statutory provisions.  Of course it can be a dangerous master.  However, it can also be a valuable servant and one should not forget that there are two sides to it.  The point I would seek to make about it is that first of all the presence of paragraph (1)(d) militates against, in the strongest fashion, the interpretation that was adopted by the Court of Appeal.  Your Honours, on the Court of Appeal’s reasoning, paragraph (d) was unnecessary.

KIRBY J:   Unnecessary, but we both know, we all know, how legislation is drafted.  Sometimes events happen and therefore they put something into an Act to cover that particular type of case.

MR JACKSON:   And, your Honour, in due course the result of that comes to be examined by the courts and one has to look at it by reference to the ordinary criteria.

KIRBY J:   That is very hard to say, a minister who has the overall control and the responsibility for this Act, who is given a general discretion with the public interest component has lost it because there is a specific provision for a particular case.

MR JACKSON:   Could I just say, your Honours, if one adopted the approach of the Court of Appeal one result would be that the provisions of paragraph (c)(ii) could be used in the case of late renewal applications for mining leases where those applications did not satisfy paragraph (d), which seems an odd result.

HAYNE J:   That is what Anthony Hordern is directed to, but let us pass that by.

MR JACKSON:   Your Honour, could I just say one other thing about this aspect of the matter. A matter of some significance which supports our contention is this, that the scheme of the Act appears to be to make specific provision where non‑compliance is to be excused. Some of those provisions can be seen in Justice Pullin’s reasons at page 36, paragraphs 20 to 25 and in particular paragraphs 21 to 23. Having listed those provisions Justice Pullin then arrives at paragraph 25 at the conclusion that the provisions of the Mining Act demonstrated, as he put it:

by analogy, it was open to the Minister under s 111A to conclude that reasonable grounds exist in the public interest to terminate an application –

et cetera.  Your Honours, the analogy, in our submission, is imperfect.  The provisions on which he bases that view are all provisions where the legislature deals specifically with particular issues.  Could I say finally in relation to this, the Act elsewhere deals specifically with providing for retention status in cases which are exactly the present kind, and that is section 70B.  Your Honours, we would submit that the section – paragraph (c)(ii) has been given too wide an operation and ‑ ‑ ‑

KIRBY J:   We have that one.  You had better spend a little time on the misuse of the power and the procedural fairness.

MR JACKSON:   Your Honour, I was going to come immediately to the procedural fairness issue.  It is really quite a narrow question.  When the Minister was considering the issue each side, if I can put it that way, made submissions to him.  The second respondent’s first submissions contained a paragraph 21 which you can see at page 132 of the application book, paragraph 283.  The paragraph contains, relevantly, two parts.  The first half of it is a reference to a letter of 13 November 1979.  We were provided with that letter.  That appears in paragraph 299. We make no complaint in that regard in these proceedings.

Secondly, however, there is the part of paragraph 21 which is the second half.  It commences on page 132 at about line 25.  That part makes it clear – in our submission it could not be clearer – that the second respondents contended that it had been in the recent and, indeed, ongoing mutual contemplation of the State and the second respondents that the area in question would be brought under an existing State agreement, the Rhodes Ridge State Agreement.

It was intended to influence the Minister as demonstrating that it would be contrary to arrangements contemplated for years not to terminate our application.  We asked for but were refused access.  Your Honours, I see that the red light is on.  May I have a minute or two to conclude what I wanted to say?  We asked for but were refused access to the records of the discussions and the draft statement of principle and the second respondents also refused to give up reliance on paragraph 21.  You will see that in paragraphs 285, 291 and 292.

There was, we might add, evidence, unchallenged, that that part of paragraph 21 was in fact inaccurate and that the Minister had not been informed of the inaccuracies.  That is at page 146, paragraph 312,

subparagraph (c).  Justice Buss simply held that paragraph 21 did not contain a representation of the kind to which I referred.  Your Honours will see that at paragraph 303.  That missed, with respect, the whole point.  We contended that the statements in the second part of paragraph 21 supported the notion which is set out in paragraph 301 at page 139.

Secondly, Justice Buss at paragraph 305 rejected the contention that paragraph 21 asserted that the statement of principle:

contained an “acknowledged need on the part of the State to bring the Shovelanna –

resource within the State agreement.  Your Honours, that is exactly what paragraph 21 seems to say.  Our point is short.  It is that if the second respondents wanted to rely on those matters in paragraph 21 we were entitled to see the material on which the assertions were based, or at least to the substance of them in order to comment on them.

HAYNE J:   What is the answer to paragraph 318 that the decision‑maker did not know?

MR JACKSON:   Your Honour, we accept that the decision‑maker did not know what the statement ‑ ‑ ‑

HAYNE J:   So natural justice required you to be made aware of a document, the content of which was not known to the decision‑maker and never became known to the decision‑maker.  Is that the proposition?

MR JACKSON:   No, it is not, your Honour.  The point is this.  Paragraph 21 was a submission put by the other side to the Minister.  It was put to the Minister on the basis that documents which he did not see recorded, in effect, an agreement – I put that in loose terms – as to what should happen to this area.  Now, in fact, the materials seem to demonstrate that was not correct but that assertion was maintained that those materials did show that and that there was such an understanding.

Our contention was and is that we should have been permitted to see the materials, or, I say, the substance of them, in order to say that contention that there was such an agreement should not be accepted by the Minister.  That is our submission.

KIRBY J:   Thank you very much, Mr Jackson.  Yes, Mr Mitchell.

MR MITCHELL:   May it please the Court. Can I firstly deal with section 111A of the Act and our submission that the Court of Appeal correctly rejected the applicant’s contention that that power did not extend to this case and if I can do that primarily by reference to some extrinsic material that we refer to for the purpose of identifying the mischief to which paragraph (c)(ii) was directed before coming to address some of my learned friend, Mr Jackson’s, particular points.

Your Honours, if I can firstly take you to the amending 1986 Act, which is in the first respondent’s materials behind tab 2 – the Mining (Validation and Amendment) Act 1986, which was a provision which introduced the substance of the provisions which continue to be found in section 111A. Section 3 of that Act, on page 3 of the print, ratifies the grant and renewal of certain mining leases which related to a number of mines, including one called the Paddington Gold Mine, which was referred to in the second reading speech, and I will come to that shortly.

Section 5 of the Act, on page 7 of the print, amended section 78 of the principal Act, the Mining Act, which deals with the term of a mining lease and the circumstances in which an option to renew, as it were, might be exercised, adding the qualification where section 111A(1) applies as being a circumstance where there would be an automatic extension of the term of a mining lease. Section 6 amended ‑ ‑ ‑

KIRBY J:   Before we plunge into all this detail, I am sure you know a lot about this Act, but I do not.  What is the point you are making and then we can have a look at the detail and see if it bears out the point you are making?

MR MITCHELL:   Certainly. The point we make is that section 111A(b)(ii), which is equivalent to the current (c)(ii), was introduced to deal with circumstances analogous to a particular situation involving a mining lease, including those involving tenements other than mining leases, which were not covered by what is now paragraph (d) of the section. That is, it was enacted for the purposes of empowering the Minister to deal with cases such as the present, in which an exploration licence or other tenement inadvertently lapses after the holder acts reasonably in attempting to renew it, and another party seeks to take advantage of that situation to – to use the colloquial expression – acquire an already discovered resource.

HAYNE J:   But was (d) introduced after as a later edition or at the one time?

MR MITCHELL:   No, they were introduced at the same time.

KIRBY J:   Does that lend any support to Mr Jackson’s argument that you therefore read the apparently very wide language – it could hardly be wider – of (c) and you have to read it down because of the presence of (d), both introduced at the same time?

MR MITCHELL:   We would say the parliamentary history, which I will take your Honours to very shortly, is quite inconsistent with that proposition, your Honour. Before coming back, can I take you then to section 6 of the amendment Act which amended section 105A, dealing with priorities, to subject that to 111A. One then sees the new section 111A inserted. Prior to that amendment it essentially provided for the power only in paragraph (1)(b)(i) – that is, a power to refuse an application where it was in the public interest that the land ought not be disturbed. Paragraph (a) was equivalent to the current paragraph (d) and paragraph (b) equivalent to the current paragraph (c). The debates ‑ ‑ ‑

HAYNE J:   We can get whatever we can out of parliamentary history, and you say it all goes your way, but the underlying question is how do you read these two provisions together?  Now, it would seem to me at least possible that the relevant principle is whether the affirmative grant of power in (d) implies a negative, qualifying (c).  That was the way it was approached in Anthony Hordern 47 CLR 1 at page 8, and it seems to me to be the basic question that emerges. Mr Jackson says there is such a qualification. What is your answer to that?

MR MITCHELL:   Our answer is, firstly, that the parliamentary history which I have indicated is inconsistent with the section being enacted for that purpose, and quite to the contrary, the type of situation which paragraph (c)(ii) was directed when one looks at the parliamentary history was situations with other tenements.

KIRBY J:   You just love that parliamentary history, but how do you answer the text, which is what we ultimately – that is how Parliament speaks to us.

MR MITCHELL:   Yes.  The text, firstly, we would say, does not read down broad language unless there is good reason to do so.  We say there is no good reason here because paragraph (d) is not rendered otiose by our view of paragraph (c)(ii), for two reasons.  Firstly, paragraph (d) enables the Minister to act purely with regard to private rights, without necessarily invoking a public interest.  Secondly, paragraph (d) gives two powers to the Minister – firstly, the power to terminate what I might call a usurping application but also the power to grant an extension of what would otherwise be an expired mining lease.  So there still is work for paragraph (d) to do on our construction of paragraph (c) ‑ ‑ ‑ 

KIRBY J:   But is there not some point in Mr Jackson’s argument that, if you look at (c) and give it absolutely general expression, it really has the potential – especially when a case might otherwise fall within – when Parliament has turned its attention to (d), of giving a sort of unbridled power to the Minister to disturb very valuable economic rights?

MR MITCHELL:   May I deal with the last part of that question first, your Honour, and my learned friend did say that this is a power which takes away a right. The right with which we are concerned is not to the grant of an exploration licence. Under section 75(6) of the Act, that lies very much in the hands of the Minister. The right which is taken away is a right to have a warden or a registrar make a report to the Minister on matters relating to the application, which report the Minister is not bound by but to which he is required to have regard. So that is part of the context which we say is relevant and it would be wrong, in my submission, to approach section 111A as if it were, in a sense, taking away a right to have a tenement granted, or conferring upon the Minister, in the case of an exploration licence, a discretion which was very much broader than he would have in any event.

Finally, my learned friend referred to retention licences.  The problem in this case was not that the second respondents were holding on to the lease using an inappropriate tenement, the problem was that they were late renewing an existing tenement, which I think all parties now accept would have been renewed had the courier arrived and the application been given to the registrar on the Friday.

KIRBY J:   But Mr Jackson says, “Well, that is as it is”, and on the Monday the four applications were lodged.  People watch these things.

MR MITCHELL:   I think the applicant watched them more closely than others.

KIRBY J:   I mean, it would be a very good reason for getting your courier to be there on time.

MR MITCHELL:  No doubt, but we say it was open to the Minister to take the view that there was a public interest in promoting investment in Western Australia and that public interest was served by, as Justice Pullin put it, really adopting what the Minister had said, sending a clear message to those who invest considerable amounts in exploration and identifying resources, that those resources are not necessarily going to be lost through slips and omissions of this kind.

Your Honours, I think time has escaped me and I will not refer to the parliamentary debates in detail but there was a reference to a Mount Seabrook situation, as it was called, which involved a different kind of tenement under the old 1904 Mining Act.

KIRBY J:   If special leave is granted we will get into all the detail.  We promise you we will look at everything that was said in Parliament.  What do you say about the procedural fairness point?

MR MITCHELL:   We say there that one needs to understand what the Court of Appeal did in light of the grounds with which it was dealing.

KIRBY J:   Is your answer with Justice Buss that, because the Minister did not know of these matters, they did not affect his decision?

MR MITCHELL:   That was the answer to one of the grounds.  The first ground unchallenged in the Court of Appeal was that Cazaly was not provided with material that was before or otherwise considered by the Minister.  The Court of Appeal concluded that the material was neither actually nor constructively before the Minister.  If it mattered, which it did not on that finding, they would have said that actual knowledge only was relevant, but that was really an alternative answer to that first ground.

The second ground, which appears in the application book at page 51, paragraph 53 of the judgment, was that the Minister failed to provide Cazaly with a sufficient opportunity to be heard and provide Cazaly with sufficient information as to the case it had to meet in relation to submissions made in paragraph 21.  If I can divide there and say that there has been a second clause to the ground, in that essentially he failed to provide certain documentations or required that that be provided, and then over on page 52, the third limb of the ground indicates the purpose for which that information ought to have been provided, at line 21:

so as to enable Cazaly to know, at all, alternatively, in sufficient detail, the proper purport of the matters being submitted by –

the joint venture –

in the said paragraph 21 and the proper purport of the case it had to meet.

The answer of the Court of Appeal to that ground was that the Concept Nominees point, or the 1979 letter point – if I can use that shorthand – was the only thing that was put in paragraph 21, but that that was the only thing that was credible, relevant and significant to the decision which the Minister had to make.  They determined that ground at page 156, paragraph 339, where having made certain factual findings at 295 to 305 said that Cazaly had sufficient information to understand the substance of paragraph 21 of the first submission, was able to respond to the submission that the State had a commitment analogous to that in Concept Nominees to apply the

Rhodes Ridge State Agreement to the land on which the Shovelanna resource was located.

That was the point at which the Court of Appeal’s decision depended.  That really is a factual question as to the scope and the relevance of the matters put in paragraph 21 in this particular case, and unless one overcomes that factual finding one does not get to the point which my learned friend, Mr Jackson, seeks to make, which we would say, perhaps for the reasons your Honour Justice Hayne adverted to, has some novelty to it and there is always a risk that that might be seen as special for that reason, but this is not a suitable vehicle ‑ ‑ ‑

KIRBY J:   Yes, we like novel things – relieves the tedium.  Yes, anything else?

MR MITCHELL:   No, we simply say that therefore it is not a suitable vehicle and in any event, for the reasons we have set out in our written submissions, the decision on that ground was not attended by sufficient doubt when one had regard to the context in which paragraph 21 appeared in all the submissions.  May it please the Court.

KIRBY J:   Thank you, Mr Mitchell.  Yes, Mr Young.

MR YOUNG:   I will deal with construction first.

KIRBY J:   You presumably will be very brief because otherwise it is repetitious.

MR YOUNG:   Yes, I will not be repetitious, your Honour.  On construction it is appropriate to start with the language of the sections and, in particular, the wide language at paragraph (1)(c).  On its face, there is nothing to impose a restriction upon the scope of paragraph (c).  There is nothing to prevent the Minister looking outside the four corners of the Cazaly application.

KIRBY J:   Yes, but you know the rules as well as we do.  It is text, context, purpose.  So we have the text, then we look at the context, which includes (d), and then we look at the purpose, which includes the material from Parliament that Mr Mitchell is terribly keen to get us to look at.

MR YOUNG:   I wanted to draw attention to two features that have not really been focused on.  First, the concept of public interest invoked in (c).  That requires a discretionary judgment based on undefined facts, limited only by the scope and purpose of the Act.  That is necessarily a very wide concept and it is inconsistent with any implied restriction applying to paragraph (c).  Secondly, you have subsection (4)  ‑ ‑ ‑

KIRBY J:   What do you say, that you do not really need (d) if you take that view of (c)?

MR YOUNG: Your Honour, I am coming to (d), if I may. I simply wanted to make some observations about the scope of (c) firstly. The other observation was subsection (4). That makes it clear, as do other provisions, including section 105A, that this section, 111, is intended to be an overriding discretionary power in the Minister to terminate applications. Section 105A is the provision that ordinarily confers priority on first in time. Cazaly was first in time but that is subject to section 111A.

Turning to the question your Honour Justice Kirby asked me, paragraph (d) is directed at mining leases and a particular circumstance concerning mining leases which had arisen immediately before the enactment of this provision.  Because it was a known situation, two conditions could be specified for termination of a rival application, and they were, although it is a late application, substantial observance in the past and continued observance.  A mining lease has a 21-year tenure and there is a right as of course to a further extension of 21 years provided a timely application is made.

One might ask what is the rationale for impliedly reading down (c) to prevent it applying to the inadvertent loss of other tenements, such as exploration licences, simply because a known situation with mining leases is explicitly addressed in paragraph (d).  That was the very subject of the debate in Hansard and the argument was to the effect no, we should have a general discretionary power to deal with the diverse range of situations that might arise in the case of other tenements.

There is no rationale that one can see for saying that Parliament intended to deal with a late renewal problem in the case of mining leases but explicitly denied the Minister power to give relief in that situation for other tenements, such as exploration licences.  Why should that be implied when there is nothing else, on the face of the legislation, to read down the general words of paragraph (c) and their invocation of the public interest?  Paragraph (c) is a very different power.  It depends on satisfaction on reasonable grounds as to the public interest.  Paragraph (d) is a very specific power relating to a specific problem that had arisen in the case of mining leases and the case that had arisen demonstrated that Parliament could prescribe two conditions and if the two conditions were met there would be an automatic extension without the need to consider public interest.

It is not a case, as the applicant says, that the Minister could, by virtue of the wide construction of paragraph (c), override the warden in every case.  It is plainly not so.  The controlling mechanism is that it be a case where reasonable grounds in the public interest require the intervention of the Minister.  But this really is a case where all those warnings about expressio unius come home to roost.  There is nothing in the Act, nothing in the scheme of the Act, nothing in Hansard, nothing in the background, to support that implied limitation.

KIRBY J:   Just this unpleasant appearance of a text.

MR YOUNG:   No, it is not unpleasant, your Honour, by virtue of the fact that (d) deals with mining leases in a specific situation.  Why get out of that some implied restriction or limitation to prevent (c) applying to completely different forms of tenements – exploration licences, prospecting licences, retention leases – where the very same sort of inadvertence might otherwise cause loss?  Those tenements are of much shorter duration.  There is no need to specify an automatic rule in those cases, but many situations can arise where, when you take a wide view of the public interest and development and competing applications, there may be reasons in the public interest for terminating an exploration licence.  The Minister has said there were reasonable grounds here in the public interest to terminate it, having regard to the disproportionate consequences of the inadvertence.  So we say this is a classic case where expressio unius is a very dangerous proposition.

KIRBY J:   Yes, you have already said that.

MR YOUNG:   Can I move to procedural fairness?

KIRBY J:   You promised me you would not be repetitious.

MR YOUNG:   I was repeating myself, your Honour.

KIRBY J:   That is repetitious.  It is when you repeat us that it is repetitious.

MR YOUNG:   Yes, your Honour.  On procedural fairness, it is our submission that this is not a case that raises any principle about procedural fairness at all, essentially for the reason indicated by Justice Hayne’s question.

KIRBY J:   You say it is not material?  Whatever the theoretical argument, it did not in fact influence the decision?

MR YOUNG:   Well, we say it is not material and we go further, your Honour.  We say there is no genuine argument about procedural fairness when it is examined, for these reasons – certainly none warranting the attention of this Court – first, there is no issue as to the applicable legal principles.  Everyone says it is Kioa, VEAL and McLaughlin and S134 that are relevant.  The only issue is to the application of those principles to a particular interpretation of paragraph 21 of Rio’s first submission.  That is the only argument.

Secondly, our learned friends extract the words “credible, relevant and significant” from VEAL and Kioa and ask the question whether the statement of principles was a document that was credible, relevant and significant because it was referred to by Rio and if they saw it they might be able to improve their rival submissions.  That leaves out the essential first step in those cases.  Those cases addressed adverse information known to the decision‑maker, which was credible, relevant and significant and which was not disclosed.

Those three elements were necessary to raise the procedural fairness issue.  Here there is an unchallenged factual finding that the Minister was not aware of the statement of principles or its contents.  Below the applicant ran a constructive knowledge argument which is not pursued, as if constructive knowledge, notwithstanding S134, could be brought within the scope of procedural fairness.  Therefore, there really is not a case about procedural fairness.  It is a case about discovery.  They essentially want any access, access to a particular document that the Minister might be able to get, in order to improve their prospects of answering the submission made by Rio.  That is not a procedural fairness point, in our respectful submission.

KIRBY J:   What is the value of the stake involved here?  Is that shown in the record at all?

MR YOUNG:   I am not sure it is, your Honour.  It is only an inferred resource.  It is a relatively small inferred resource of some 120 million tonnes and it is high in phosphorus content.  So it is a relatively small resource and Rio’s submission was essentially that to make it economic it would have to be developed as part of integrated mining operations that developed other resources in the neighbourhood at the same time.

KIRBY J:   You could not say that the fact your situation is totally unique, I mean, this type of problem is likely to occur, at least so far as the first point – the power point and the use of the power?

MR YOUNG:   As to the power point, your Honour, that really turns on the construction of this particular provision, which is unique to Western Australia.  It is a special overriding power.

KIRBY J:   Since Justice Callinan’s time we never say that any more.  We sit here as the supreme court of the country, so the fact that it is unique to Western Australia is neither here nor there really.

MR YOUNG:   The other point, your Honour, I would make concerning procedural fairness is our learned friend put it accurately the first time round in his submission when he said that paragraph 21 asserted that the development of Shovelanna in conjunction with other tenements falling within the Rhodes Ridge State Agreement was asserted to be a matter of mutual ongoing contemplation by the State Government and Rio.  That is the accurate interpretation of paragraph 21.

Paragraph 21 makes no assertion about the contents of the statement of principles.  It simply says that that mutual assumption was a basis for the discussions that led to the statement of principles.  So the contents of the statement of principles were not invoked directly by Rio’s submission, and that is another reason why this argument really turns on an interpretation of a third party’s submissions, where no claims were made about the content of the statement of principles, and that does not really support a natural justice case that the applicant was entitled to a document that the Minister did not have and which Rio did not rely upon in terms of the contents of the document.  For those reasons, in our submission there is no procedural fairness issue warranting the grant of special leave and the Full Court was correct in its findings.  If the Court pleases.

KIRBY J:   Thank you, Mr Young.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I say first in relation to the submissions on behalf of the first respondent, we accept that the right taken away is not a right to have it granted, but rather a right to have it considered and dealt with under the Act.  The second thing is in relation to the argument concerning retention licences.  The point that we would seek to make is that the Act makes specific provision for licences of the kind appropriate to what had been done and what was being done by the second respondent and what he had wanted to retain the land for.  The presence of provisions of that kind – I hope your Honours will forgive me if I use the word again – militates against reading the power under paragraph (c)(ii) as dealing with that topic.

Your Honours, the other point that we would seek to make in relation to our learned friend, Mr Young, is that section 111A(1)(d) is an additional power. We accept that. Paragraph (4) of section 111A says that. The question, however, is what is the ambit of the power so additionally conferred. Your Honours, could we also say, in relation to my learned friend Mr Young, there is a rationale - meaning by that a reason why mining leases would be dealt with differently. Your Honours will see it is set out in our submissions in reply at pages 223 to 224, paragraphs 1 through to 4.

Your Honours, going then to the question of natural justice, the point is not that the Minister did not see the documents – rather, there was an assertion made that discussions which had gone over a long time had had a particular effect, giving rise to there being an understanding.  We were entitled to show that that assertion, which was relied upon and insisted upon being relied upon, was not correct.  Your Honours, our submission on the issue is encapsulated in what is on page 189, paragraph 22.5.

Finally, your Honours, may I say just this.  I said – and my learned friend Mr Mitchell, I think, picked it up – something to the effect that the renewal would have been granted in respect of the second respondents if it had been applied for in appropriate time.  Your Honour, if I conveyed that impression, it was intended to convey that, bearing in mind the state of mind of the Minister, that was the likely result.  Of course section 61 required that the application be lodged within time.  That is one feature – that is 61(3) - but also the Minister had a power to extend, not an obligation to extend, and that is section 61(2).

KIRBY J:   The Court will adjourn briefly to consider the course it will take in this matter.

AT 11.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.23 AM:

KIRBY J:   The applicant seeks to challenge the judgment of the Court of Appeal of the Supreme Court of Western Australia. That court discharged an order nisi for a writ of certiorari granted to the applicant in the Supreme Court by Justice Templeman. The applicant was contesting the decision of the Western Australian Minister for Resources to terminate its application for a mining tenement, purportedly made by the Minister under powers granted to him by section 111A of the Mining Act 1978 (WA).

The Minister’s action followed the automatic expiration of an earlier exploration licence which occurred when a courier service, acting as an agent of the second respondent, the earlier licensee, failed to deliver its application for extension of its licence to the Mining Registrar by the due date.  This led to the applicant’s application for the licence on the next working day.

The applicant contests the validity of the Minister’s decision to terminate its application on the ground that the Minister did not enjoy the power purportedly exercised; that he had taken into account extraneous considerations; and that he had acted unfairly in the course that he adopted. However, because the Act reposes the evaluation of the public interest in the Minister, accountable to Parliament, it would, in our view, be contrary to principle to adopt a narrow reading of section 111A of the Mining Act such as would limit the powers of the Minister in the manner advocated by the applicant before us. 

In the light of the unchallenged factual findings of the Court of Appeal we are not convinced of any procedural unfairness that was material to the Minister’s decision.  Accordingly, we come to the view that there is no arguable basis for the intervention of this Court.  Special leave is therefore refused.  The applicant must pay the costs of the respondents.

AT 11.25 AM THE MATTER WAS CONCLUDED