Cazaly Iron Pty Ltd v Minister for Resources & Ors
[2007] WASCA 58
•27 FEBRUARY 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CAZALY IRON PTY LTD -v- MINISTER FOR RESOURCES & ORS [2007] WASCA 58
CORAM: BUSS JA
HEARD: 27 & 28 FEBRUARY 2007
DELIVERED : 27 FEBRUARY 2007
PUBLISHED : 15 MARCH 2007
FILE NO/S: CIV 1808 of 2006
BETWEEN: CAZALY IRON PTY LTD (ACN 101 049 334)
Applicant
AND
MINISTER FOR RESOURCES
First RespondentHANCOCK PROSPECTING PTY LTD (ACN 008 676 417)
WRIGHT PROSPECTING PTY LTD (ACN 008 677 021)
HAMERSLEY RESOURCES LTD (ACN 004 887 656)
Second Respondents
Catchwords:
Prerogative writs - Application for leave to adduce oral evidence on the return of an order nisi - Order 56 r 8 Rules of the Supreme Court 1971 (WA) - Whether any question or issue of fact arises upon the affidavits - Whether further evidence should be given on affidavit rather than by oral evidence
Practice and procedure - Affidavits - Whether affidavit should specify the source of the deponent's knowledge - Whether affidavit should be filed and served
Legislation:
Mining Act 1978 (WA), s 111A(1)(c)(ii)
Rules of the Supreme Court 1971 (WA), O 56 r 8
Supreme Court (Court of Appeal) Rules 2005 (WA), r 5(1), r 68
Result:
Application for leave to adduce oral evidence dismissed
First respondent ordered to file and serve an affidavit
Category: B
Representation:
Counsel:
Applicant: Mr R J Price (27 February 2007)
Mr M J McCusker QC (28 February 2007)
First Respondent : Mr R M Mitchell
Second Respondents : Mr P C S Van Hattem
Solicitors:
Applicant: DLA Phillips Fox
First Respondent : State Solicitor
Second Respondents : Allens Arthur Robinson
Case(s) referred to in judgment(s):
Barristers' Board of Western Australia v Tranter Corporation Pty Ltd [1976] WAR 65
Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282
BUSS JA: By a notice of originating motion dated 4 August 2006, the applicant made application for, relevantly, an order that the first respondent show cause before this Court as to why a writ of certiorari should not issue against him to remove into this Court, for the purpose of being quashed, his decision made on 21 April 2006 to terminate application for exploration licence 46/678 pursuant to s 111A(1)(c)(ii) of the Mining Act 1978 (WA). The notice of originating motion also sought declaratory and other relief.
On 11 August 2006, Templeman J made an order nisi for a writ of certiorari. His Honour also made various other orders including an order that the application for declaratory relief be heard by this Court on the return of the order nisi.
On 22 December 2006, I made orders, relevantly, as follows:
(a)the applicant have leave to amend par 13(b) of the notice of originating motion in accordance with the minute annexed to its application for leave to amend dated 23 November 2006; and
(b)the applicant's application for leave to amend by the addition of a proposed par 13(c) in accordance with that minute be refused.
By an amended application dated 15 February 2007, the applicant applied for orders, as follows:
"1.The Applicant have leave to adduce oral evidence at the hearing of the order absolute [sic] of the matters set out in the confidential memorandum of evidence, a copy of which is annexed hereto and marked 'A' from the witnesses referred to therein.
2.The Applicant have leave to issue a subpoena to give evidence (ad testificandum) upon Mr Neil Roberts."
The background facts in relation to this litigation are set out in my reasons in Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282. It is unnecessary to repeat them.
The witnesses from whom the applicant sought leave to adduce oral evidence on the return of the order nisi comprised the Hon Alan Carpenter MLA, the Hon John Bowler MLA, Mr Roberts and Mr Leigh Clifford.
The first and second respondents opposed the applicant's application.
On 27 February 2007, I heard the application. After the parties made submissions, I decided that the application for leave to adduce oral evidence should be dismissed, but that the Hon Mr Bowler should be ordered to file and serve an affidavit deposing, to the best of his knowledge, information and belief after making due and proper inquiries, as to the extent of his knowledge, at material times, of various matters set out in the (confidential) memorandum of evidence (which had, by then, been amended). I indicated that, later, I would publish reasons for my decision.
On 28 February 2007, I made an order giving effect to my decision, and an ancillary order, as follows:
"1By 4.00 pm on 9 March 2007 the Hon John Bowler MLA file and serve on the other parties an affidavit deposing, to the best of his knowledge, information and belief after causing due and proper inquiries to be made, as to the extent of his knowledge, on or prior to 21 April 2006, of the following matters:
(a)the 'Negotiations', including the content thereof;
(b)the content of the 'Statement of Principles';
(c)the 'SoP Matters', other than the 'Rhodes Ridge Tenure Issue'; and
(d)the 'Development Implications',
as those terms are defined in the Amended Memorandum of Evidence (Confidential) dated 15 February 2007 and filed in these proceedings.
2The Subpoenas issued to the Hon John Bowler MLA, the Hon Alan Carpenter MLA, Mr Leigh Clifford and Mr Sam Walsh are set aside."
The applicant had submitted that par 1 of those orders should require Mr Bowler's affidavit to be served but not filed, and that Mr Bowler should be required to specify the source of his knowledge (if any), at material times, of the various matters set out in the (confidential) amended memorandum of evidence. I refused to incorporate those amendments in the order, and I stated that, later, I would publish reasons for my decision.
My reasons for the decisions in question are set out below.
Order 56 r 8 of the Rules of the Supreme Court1971 (WA) provides:
"(1)On the hearing of the application the Court may allow the applicant to use further affidavits upon such terms as to adjournment or costs as the Court thinks fit.
(2)Where the applicant intends to ask to be allowed to use further affidavits, he must give reasonable notice of his intention to every other party.
(3)When any question or issue of fact arises upon the affidavits the Court may give such directions as it thinks fit for the determination of the question or issue by trial or inquiry."
The applicant, in its submissions, referred to two alleged disputes of fact which it sought to resolve by adducing oral evidence, namely:
(a)whether the Hon Mr Bowler had "a more detailed knowledge of the negotiations and the statement of principles" than the references in par 21 of the "First Rio Submissions"; and
(b)precisely what was said "at [the meeting on or between about 6 and 8 September 2005] in London between [the Hon Mr Carpenter] and Mr Leigh Clifford and the precise context of what was said".
Order 56 r 8(3) contemplates directions from the Court, as it thinks fit, for the determination, by trial or inquiry, of any question or issue of fact which arises upon the affidavits which have been filed and served. In the present case, there is no dispute or difference upon the existing affidavits in relation to the extent of the Hon Mr Bowler's knowledge, at material times, of the negotiations or the statement of principles referred to in par 21 of the First Rio Submissions or as to what was said at the meeting between the Hon Mr Carpenter and Mr Clifford or the context in which it was said.
By r 5(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA), the Court of Appeal Rules must be read with the Rules of the Supreme Court.
Rule 68(1)(c) of the Court of Appeal Rules provides that r 68 applies to any rule nisi or an order to show cause that, under s 43(2) of the Supreme Court Act 1935 or O 56 of the Rules of the Supreme Court, is made returnable before the Court of Appeal. By r 68(2):
"A single judge has jurisdiction to make any order that will or may facilitate [any cause or matter that the Court of Appeal has jurisdiction to hear and determine] being conducted and decided efficiently, economically and expeditiously."
By r 68(3)(d), without limiting r 68(2), a single judge has jurisdiction to modify or dispense with the operation of a rule in the Rules of the Supreme Court in respect of any cause or matter that the Court of Appeal has jurisdiction to hear and determine.
Paragraph 13(b) of the notice of originating motion (as amended pursuant to the orders made on 22 December 2006) provides:
"Minister Bowler failed to provide Cazaly [that is, the applicant] with sufficient opportunity to be heard, and to provide Cazaly with sufficient information as to the case it had to meet, in relation to submissions made by Rio in paragraph 21 of the letter from Rio to the Hon Alan Carpenter MLA, Minister for State Development, dated 21 September 2005 (Rio's First Submission) in that:
(i)he failed to provide Cazaly, alternatively
(ii)he failed to require Rio to provide Cazaly,
with documents and/or information explaining adequately the references in the said paragraph 21 to:
'The issue of tenements held by RRJV is also the subject of ongoing discussions with you over the last 6 months concerning the various State Agreements to which members of the RTIO group of companies are party and which are reflected in the Statement of Principles that is being finalised for execution';
including documents and/or information to explain adequately the material content of the 'ongoing discussions' and the material content of the Statement of Principles that was being finalised so as to enable Cazaly to know, at all, alternatively, in sufficient detail, the proper purport of the matters being submitted by Rio in the said paragraph 21 and the proper purport of the case it had to meet."
I note, for completeness, that on 6 March 2007 I granted the applicant leave to re‑amend its notice of originating motion. The further amendments related, in part, to par 13(b), but they are not material for present purposes.
In my opinion, it is reasonably arguable that if, at material times, the Hon Mr Bowler had actual knowledge of the negotiations and the statement of principles which was greater or more detailed than the references in par 21 of the First Rio Submissions then the applicant's allegations in par 13(b) concerning the alleged denial of procedural fairness have better prospects of success. I decided, therefore, that it is in the interests of justice that the applicant be permitted to adduce further evidence as to the extent of Mr Bowler's knowledge, on or prior to 21 April 2006, of the matters set out in the (confidential) amended memorandum of evidence which are enumerated in par 1 of the orders made 28 February 2007. It is more convenient, and consistent with the usual practice of the Court on the return of an order nisi, for Mr Bowler to give the further evidence on affidavit rather than by oral evidence, especially as there is no dispute or difference upon the existing affidavits in relation to the extent of his knowledge.
The point in issue, for present purposes, concerns the Hon Mr Bowler's actual knowledge of the negotiations and the statement of principles, and not the source of his knowledge. I therefore refused to accede to the applicant's submission that par 1 of the orders made 28 February 2007 should require Mr Bowler to specify the source of any knowledge he had, at material times, of the relevant matters in the (confidential) amended memorandum of evidence.
The applicant is not, of course, obliged to rely on the affidavit of the Hon Mr Bowler as part of its case, and the affidavit does not become evidence in the proceedings until the applicant (or another party) has read it to the Court or the Court rules that it should be taken as read. In particular, the affidavit does not become evidence merely in consequence of its having been filed. See Barristers' Board of Western Australia v Tranter Corporation Pty Ltd [1976] WAR 65 at 68. I therefore refused to accede to the applicant's submission that par 1 of the orders made 28 February 2007 should specify that Mr Bowler's affidavit be served but not filed.
I was not satisfied that there is any proper basis for granting the applicant leave to adduce oral evidence from the Hon Mr Carpenter, Mr Roberts or Mr Clifford. Paragraph 1 of the orders made 28 February 2007 requires the Hon Mr Bowler to cause due and proper inquiries to be made as to the extent of his knowledge, at material times, of the matters I have identified, and, after those inquiries have been made, to swear an affidavit which sets out the extent of his knowledge. It is not appropriate that Mr Carpenter, Mr Roberts or Mr Clifford be required to give oral evidence (or swear an affidavit) as to any communications or dealings they may have made with Mr Bowler in relation to the relevant matters, and which may have been the source of any knowledge Mr Bowler may have had of those matters. It is Mr Bowler's knowledge (if any), and not the source of his knowledge, that is relevant.
In Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282, I said, at [85] ‑ [87], in the context of refusing a proposed amendment to par 13 of the notice of originating motion which involved the addition of a new par 13(c):
"There is no evidence before me that there was any conversation between Mr Clifford and the Honourable Mr Carpenter, in relation to the possible termination of the application for E46/678, beyond the brief exchange mentioned by Mr Carpenter during the radio interview. The transcript of the interview records, relevantly, that:
(a)the meeting between Mr Carpenter and Mr Clifford was arranged before they became aware of RRJV's loss of E46/209 and the application by the applicant for E46/678;
(b)Mr Clifford informed Mr Carpenter of the events relating to the loss of E46/209 and the application for E46/678, and that there would be a dispute in relation to those events; and
(c)Mr Carpenter informed Mr Clifford that he was obliged, as the responsible Minister, to act properly and fairly, and he would do so.
There is no evidence that any further or other matters were discussed at the meeting in relation to the loss of E46/209, the application for E46/678 or the request 'foreshadowed' by Hamersley Resources Ltd in its letter dated 2 September 2005 that Mr Carpenter exercise his discretion to refuse the applicant's application under s 111A(1)(c)(ii) of the Mining Act. There is no evidence that Mr Carpenter's account of his conversation with Mr Clifford, or the circumstances in which it occurred, is incomplete or inaccurate.
In my opinion, it is not reasonably arguable that any matters were discussed between the Honourable Mr Carpenter and Mr Clifford at the meeting which were credible, relevant or significant to the first respondent's decision. Further, it is not reasonably arguable that a hypothetical fair‑minded person who is properly informed as to:
(a)the statutory context and decision‑making structure in relation to s 111A(1) of the Mining Act;
(b)the matters to be decided in relation to whether the applicant's application for E46/678 should be terminated pursuant to s 111A(1)(c)(ii); and
(c)the objective facts, disclosed in the evidence before me, concerning the meeting,
might reasonably apprehend, by reason of those matters, that Mr Carpenter, or his successor as the Minister responsible for the administration of the Mining Act, might not bring an independent and impartial mind to the making of the decision in question. On the evidence before me, there was nothing in the conversation between Mr Clifford and Mr Carpenter which should have been communicated to the applicant to enable it to make a correction or contradiction or to make submissions. Also, on the evidence, there was nothing in that conversation which gave rise to a reasonable apprehension of bias.
It is unnecessary, in the circumstances, to determine whether there is a reasonable argument for the proposition that the substance of the exchange between the Honourable Mr Carpenter and Mr Clifford at the meeting was 'actually or constructively' before the first respondent when he made his decision."
The evidence before me on 27 February 2007 did not suggest that the "Representations", as defined in the (confidential) amended memorandum of evidence, were made at the meeting between the Hon Mr Carpenter and Mr Clifford. Further, and in any event, the evidence before me on that date did not indicate that the substance of any of the discussions at the meeting was subsequently communicated to the Hon Mr Bowler. In Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282, I decided, at [73] ‑ [88], [96], that discovery of documents evidencing or relating to the meeting between Mr Carpenter and Mr Clifford should not be required. For the same reasons, I decided on 27 February 2007 that leave to adduce oral evidence in relation to the meeting should be refused.
Accordingly, I dismissed the applicant's application for leave to adduce oral evidence on the return of the order nisi, I ordered the Hon Mr Bowler to swear the affidavit I have mentioned, and I refused to incorporate the applicant's suggested amendments in the orders made on 28 February 2007.
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