Connected IO Limited v Paterson - [2019] WASCA 70

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CONNECTED IO LIMITED -v- PATERSON [2019] WASCA 70
CORAM:   BUSS P
MURPHY JA
BEECH JA

HEARD:   3 APRIL 2019
DELIVERED          :   16 MAY 2019
FILE NO/S:   CACV 72 of 2018
BETWEEN:   CONNECTED IO LIMITED
Appellant
AND
ANDREW PATERSON
First Respondent
THE MINISTER FOR MINES AND PETROLEUM
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   PRITCHARD J
Citation: PATERSON -v- THE MINISTER FOR MINES AND PETROLEUM [2018] WASC 200
File Number             :   CIV 1975 of 2017

Catchwords:

Administrative law - Procedural fairness - Application under s 111A of the Mining Act 1978 (WA) - Where Minister's advisors exchanged emails and held a meeting with one party to the application - Whether those communications involved any new matter that was credible, relevant and significant to the Minister's decision

Legislation:

Mining Act 1978 (WA), s 111A

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S M Davies SC & D R Chandler
First Respondent	:	M T McKenna & A Z Tole
Second Respondent	:	No appearance

Solicitors:

Appellant	:	HopgoodGanim Lawyers (Perth)
First Respondent	:	Gilbert + Tobin
Second Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Connected IO Limited v Paterson [2018] WASC 200
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152

JUDGMENT OF THE COURT:

Introduction

The appellant, Connected IO Limited, was previously named Leopard Resources NL. We will refer to it as Leopard, by which name it was known for most of the period material to this appeal.
Leopard held an exploration licence under the Mining Act 1978 (WA) (the Act) to explore for minerals over land situated in the Mt Malcolm district at Darlot North (the Land). It could have sought an extension of the term of that licence, but failed to do so. Consequently, at midnight on 17 March 2015, the licence expired, pursuant to s 61 of the Act.
At 8.30 am on 18 March 2015, the first respondent, Mr Paterson, and three other parties lodged applications for exploration licences over the Land. Mr Paterson's application obtained priority upon his success in a ballot conducted by the mining warden pursuant to s 105A(3) of the Act.
On 18 June 2015, Leopard lodged an application for another exploration licence. Leopard then wrote to the Minister for Mines and Petroleum (the Minister) requesting that he exercise his powers under s 111A of the Act to refuse the other applications in the public interest and, or alternatively, to grant Leopard's application pursuant to s 59(6) of the Act.
On 28 November 2016, the Minister made a decision to refuse Mr Paterson's application and the other applications pursuant to s 111A of the Act, the effect of which was to allow the Leopard application to proceed to determination in accordance with the Act (the Decision).
In the primary proceedings, Mr Paterson sought judicial review of the Decision. He sought a writ of certiorari to quash the Decision on the grounds that, in making the Decision, the Minister breached the rules of procedural fairness in that he did not provide Mr Paterson with an opportunity to be heard, or, alternatively, that he demonstrated actual or apprehended bias in the decision‑making process.[1]
[1] Connected IO Limited v Paterson [2018] WASC 200 (primary reasons) [4], [47].
The primary judge found that the Minister failed to afford procedural fairness to Mr Paterson in that he failed to provide Mr Paterson with an opportunity to respond to new matters raised by Leopard in the course of certain ex parte communications between it and the Minister. Consequently, the primary judge quashed the Decision.[2]
[2] Primary reasons [74], [86].
Leopard challenges the primary judge's conclusions on four grounds. Two grounds (grounds 3 and 4) challenge inferences of fact drawn by the primary judge. One ground (ground 1) asserts that the primary judge erred in law in failing to find that the material not disclosed to Mr Paterson was 'relevant, credible and significant', when such a conclusion was legally essential to a finding of a breach of procedural fairness. For the reasons developed below, there is no merit in any of these grounds.
The point of substance in the appeal concerns ground 2. That ground challenges the primary judge's finding that some of the undisclosed material was new, and relevant, credible and significant, for the Minister's decision. For the reasons that follow, in our opinion, the challenge to this finding fails, and the appeal must be dismissed.
The nature of the grounds of appeal requires the detailing of the course of communications and submissions concerning Leopard's s 111A application.

Factual background

There was, and is, no dispute as to the primary facts, which were established by two affidavits of Mr Paterson, an affidavit of a solicitor for Mr Paterson and an affidavit of a solicitor for Leopard. There is no challenge to the primary judge's summary of the facts established by those affidavits, although some of the inferences drawn by the primary judge are challenged.

June to September 2015: submissions process in respect of the s 111A application

On 19 June 2015, Leopard's solicitors, Hunt and Humphrey, sent a submission to the Minister on behalf of Leopard, constituting the s 111A application. The letter:[3]
(1)submitted that, before Leopard's exploration licence expired, it could and should have applied to the Minister for an extension of time for the licence, on the basis of the existence of exceptional circumstances;
(2)identified the exceptional circumstances, including: the less than two‑year period for which it had held the licence; the $1.2 million, being six times the minimal expenditure, it had spent on exploration; its commitment to exploration in a period when other junior explorers were not meeting their commitments; its proving up of a 'JORC Code' compliant inferred mineral resource estimated at 1.5 million tonnes at an average grade of 3.8 g/tonne; and its hopes of entering into a joint venture to establish a gold mine on the land;
(3)submitted that Leopard had been given incorrect advice by the Department of Mines and Petroleum (the Department) about what it was required to do to renew the exploration licence, namely merely to pay the rent for the following year within 30 days of the date of expiry;
(4)submitted that, in the circumstances, the Minister should use his power under s 111A of the Act to refuse the other applications and then grant the Leopard application pursuant to s 59(6) of the Act.
[3] Primary reasons [11]; GAB 27 - 30.
By letter dated 22 July 2015, the Department advised Mr Paterson that the Minister had received the s 111A application from Leopard.[4] The letter stated:[5]
[Y]ou are now invited to lodge a submission to be considered by the Minister, which would support why your application should not be refused pursuant to section 111A or alternately why [Leopard's application for an exploration licence] should not be granted pursuant to section 59(6).
Any submission must be lodged with the [Department] by 17 August 2015, with the understanding that it will be copied to [Leopard], and [its] submission will be copied to you.
All parties will then be allowed a further fourteen (14) days from the receipt of the copy of each other's submission to provide any comments they may wish to make thereon. Any such comments must be restricted to the contents of the opposing submission and any comments made will be copied to the opposing party.
All submissions received will then be reviewed by the Minister prior to a final decision being made.
[4] Primary reasons [12]; GAB 24.
[5] GAB 24.
By letter dated 6 August 2015, Mr Paterson made a submission to the Minister in accordance with the letter from the Department.[6] Mr Paterson refuted the suggestion that his application should be refused under s 111A of the Act, or that Leopard's application should be granted pursuant to s 59(6) of the Act, making the following points:[7]
1.[My application] was submitted in full compliance with the Mining Act on 18 March 2015 over ground which had become vacant;
2.I have paid the requisite application fee and first year's rent;
3.[Leopard] made no immediate response to the loss of [its] tenement, and did not appear to realise the error until [its] ASX announcement of 16 April 2015;
4.I intend to continue exploration on the tenement once it is granted with the aim to develop it into a mining operation;
5.I also respectfully submit that it would not be in the public interest for [Leopard] to regain access to the project, as [it] ha[s] achieved little during [its] tenure and ha[s] not even brought the project into compliance with the 2012 JORC Code. [It] ha[s] also subsequently announced [its] intention to convert [Leopard] into a technology company, as per [its] announcement of 16 July 2015. This would appear to be at odds with [its] intention of continuing exploration on the project.
[6] Primary reasons [13]; GAB 25.
[7] GAB 25.
By letter dated 24 August 2015, the Department provided Mr Paterson with a copy of the s 111A application, which constituted Leopard's 'submission' for the purposes of the submissions process, and invited comments in response.[8] The letter stated:[9]
You now have a period of 14 days from the date of this letter (7 September 2015) to make comment on the submission. Please note that your comment must be limited to the content of the attached submission.
Following receipt of comments made, those comments will be provided to the opposing party however no further comments should then be made. All submissions, comments and any other relevant evidence or information will then be submitted to the [Minister] for his consideration and determination of the above matter.
[8] Primary reasons [14]; GAB 26.
[9] GAB 26.
By letter dated 3 September 2015, Mr Paterson made his responsive comments to the s 111A application.[10] In summary, he submitted that (1) Leopard had no reason to misunderstand the requirements of the Act, challenging Leopard's statement of the circumstances in which its exploration licence had expired, (2) the exploration work conducted by Leopard was not as extensive as claimed, (3) it was not in the public interest to refuse Mr Paterson's application in preference for an application brought in circumstances of 'clear incompetence', and (4) if Leopard were granted an exploration licence, it would immediately sell the licence to pursue its objective to move into the technology market.
[10] Primary reasons [15]; GAB 36 - 39.
The letter stated that refusing Mr Paterson's application
would set a dangerous precedent for the rest of the mining industry. Cases of clear incompetence such as this one are vastly different from previous cases in which tenement expiries have been overturned in the public interest.[11]
In its conclusion, the letter stated that to grant Leopard's application 'would inevitably send a message to the rest of the industry that tenement compliance is not obligatory, and that lapses in management can be remedied by a simple submission to the Minister', urging the Minister to 'avoid setting such a precedent'.[12]
[11] GAB 38.
[12] GAB 39.
The letter also included the following:[13]
If my application E37/1220 is allowed to continue and move towards grant, an industry best‑practice gold exploration program will be conducted to continue advancing the Mission and Cables prospects, with a view to establishing a profitable mining operation in the future. This will be significantly more professional, transparent and better for the public interest than the work done by Leopard.
[13] GAB 38.
By letter dated 9 September 2015, Leopard, by its solicitors, made its responsive comments to Mr Paterson's submission of 6 August 2015.[14] The letter (1) addressed the circumstances in which the exploration licence had expired, (2) submitted that it was highly unlikely Mr Paterson would demonstrate the same financial commitment to exploration as Leopard, (3) stated that it had detailed its exploration work in JORC‑compliant terms in public reports produced during the term of the exploration licence, (4) explained that Leopard's intention to convert to a technology company was the inevitable result of the expiry of the exploration licence, and (5) confirmed its preference to remain a mineral exploration and mining company.
[14] Primary reasons [16]; GAB 41 - 42.
By letter dated 17 September 2015, the Department provided Mr Paterson with a copy of Leopard's responsive comments and advised that 'this matter will be referred to the Minister with the information presently submitted therefore no further comments should be made'.[15]

October 2015 to June 2016: further communications from Leopard in respect of the s 111A application

[15] Primary reasons [17]; GAB 40.

By letter dated 15 October 2015, Leopard, by its solicitors, wrote to the Minister complaining about a failure to afford procedural fairness to Leopard, concluding:[16]
[T]he only way Leopard can now be afforded procedural fairness is if you agree to meet with Leopard's officers before you exercise your discretion to make a decision upon the competing applications.
Failing that a claim by Leopard for judicial review by the Supreme Court will be Leopard's only possible recourse.
[16] Primary reasons [18]; GAB 62.
By letter dated 25 November 2015, the Minister advised Leopard that, given the number of parties affected by the matter, he did not believe it to be appropriate to meet with only one of the parties.[17] Instead, he advised that he had requested the Department to contact Leopard to make arrangements for Leopard's directors to meet with the Department.
[17] Primary reasons [19]; GAB 59.
On 4 February 2016, directors of Leopard met with officers from the Department. The details of that meeting were not in evidence before the primary judge, except insofar as they were addressed in a briefing note later provided by the Acting Director General of the Department to the Minister for the purposes of aiding the Minister to decide the outcome of the s 111A application.[18] That briefing note stated, in relation to the meeting:[19]
The Directors of Leopard did not respond to [the Department's] initial contact, however, agreed to meet on 4 February 2016. In the meeting, [the Department] presented a diagram … which detailed the submission exchange process that had taken place. Leopard appeared confused by the process, but indicated that it had not had an opportunity to provide comment to the last two submissions. [The Department] advised that the exchange process had concluded and it was open to Leopard to provide further submissions directly to the Minister's office and that a decision would be made as to whether it would be received into the process.
[18] Primary reasons [20]; GAB 73 - 83.
[19] Primary reasons [25]; GAB 80.
Between February and May 2016, Leopard, by its solicitors, wrote four letters to the Department. Those letters were not in evidence before the primary judge, but were addressed in the briefing note.[20] The letters, in substance, appear to have complained of a denial of procedural fairness afforded to Leopard. Insofar as Mr Paterson was concerned, Leopard requested to respond to Mr Paterson's responsive comments because those comments 'were not restricted to the content of [Leopard's] submission and had clearly raised new issues which Leopard had not been given the opportunity to comment on'.[21] The Department rejected Leopard's complaints, stating that '[the Department] had afforded procedural fairness to all parties and that if Leopard felt aggrieved by the process, [it] could write directly to the [Minister]'.[22]
[20] Primary reasons [20]; GAB 80 - 81.
[21] Primary reasons [20]; GAB 81.
[22] GAB 81.
By letter dated 30 June 2016, Hunt and Humphrey wrote to the Minister.[23] By this stage, a new Minister had been appointed to the portfolio. The letter complained about the process of consultation that had been followed by the Department and alleged that procedural fairness had not been afforded to Leopard. The letter then made submissions 'seeking to redress the unfairness' caused to Leopard in the process that had been adopted by the Department, making responsive submissions to submissions made on behalf of other applicants. The primary judge inferred that these included a response to Mr Paterson's submissions in the letter dated 3 September 2015.[24] That inference is not challenged on appeal.

September 2016: further communications from Leopard in respect of the s 111A application

[23] Primary reasons [21]; GAB 55 - 58.

[24] Primary reasons [21].

By email sent on 2 September 2016, a person associated with Leopard (Leopard's officer) (whose name was redacted from the documents in evidence) contacted the Minister's office to organise an appointment with the Minister.[25]
[25] Primary reasons [28]; GAB 52 - 53.
By email sent on 16 September 2016, the Minister's office notified Leopard's officer that the Minister was unable to meet with them, but instead that Leopard's officer was invited to meet with two principal policy advisors from the Minister's office (the advisors).[26]
[26] Primary reasons [28]; GAB 52.
By a series of emails between the advisors and Leopard's officer, a meeting was arranged to take place between them on 27 September 2016.[27] In advance of that meeting, the advisors invited Leopard's officer to provide 'some brief dot points of the key issues you'd like to discuss and the outcomes you are seeking'.[28]
[27] Primary reasons [28]; GAB 49 - 50.
[28] Primary reasons [29]; GAB 49.
By email sent on 26 September 2016, Leopard's officer responded to the advisors' suggestion by providing 'some background for our discussions'.[29] Leopard's officer explained that the expiration of Leopard's exploration licence had come about inadvertently, in part owing to alleged misleading advice provided by the Department.[30] Leopard's officer stated that Leopard was 'seeking the Minister to use their discretion to refuse the four competing … applications and to direct that [Leopard's application] be granted'.[31] The email then stated:[32]
[29] Primary reasons [29]; GAB 47.
[30] Primary reasons [29]; GAB 47.
[31] GAB 48.
[32] Primary reasons [29]; GAB 48.
We believe the Minister should intervene in favour of [Leopard] because fairness requires it for the following reasons:
1)The process of submissions followed by [the Department] did not accord with [the Department's] long established policy, the Minister's advice to Leopard and the law relating to natural justice and procedural fairness in that:
•[the Department] accepted a submission from [another party] out of time. That submission should not be put before the Minister.
•[the Department] declined to allow Leopard to comment on [another party's] submission. An obvious breach of natural justice.
•[name redacted's] comments raised matters which went beyond the issues raised in [name redacted's] submission. Several of [name redacted's] comments should not be put before the Minister.
2)Leaving aside technical matters, the important requirements of holding an exploration licence and the fundamental objects of the Mining Act (explore and develop) were fully met by Leopard. It spent $1,200,000 on exploration and proved up a 'JORC' Code compliant Inferred Mineral Resource of 1,500,000 tonnes at an average grade of 3.8 g/t Au (185,453 oz gold). This expenditure on exploration is approximately six times the minimum expenditure required by the Mining Act. It was done at a time of depressed activity in the WA mining industry when very few other explorers were meeting their [exploration licence] conditions.
…
There is a very sound reason why the Minister is given absolute discretion whether to grant an [exploration licence] regardless of any warden's recommendation or failure to observe a requirement of the Mining Act. From time to time circumstances arise where a strict application of the processes of the Act would result in injustice which the Minister (who is entitled to take a broad view of the industry) is given the power to remedy (eg when RioTinto inadvertently failed to lodge an application in time, the Minister overlooked that failure so that he could protect RioTinto's title because of the company's genuine contribution to the industry).
We believe the example above demonstrates precedence and that our circumstances deserve the same level of discretion, in the interest of fairness and for the benefit of all the individual shareholders.

On 27 September 2016, Leopard's officer met with the advisors. The documents in evidence before the primary judge included what appears to be a handwritten file note recording the discussion at the meeting. The names of third parties appear to have been redacted, but the note includes the following:[33]
[33] Primary reasons [30]; GAB 51.
March 2015 - paid [exploration licence] rent 1 week overdue. Hasn't been returned. Presume process is still ongoing.
…
[The Department] provided incorrect verbal advice - Kalgoorlie office.
$1.2 million expenditure - Leopard.
Now 3 competing applications.
18 months on, no certainty.
…
Where is it in the process?
3 parties applied: [names redacted]
…
Was a ballot and supposedly he won the ballot?
Outcome of Warden's court process?
…
Now just between Leopard + [name redacted]?
[Leopard] to send thru corro + names of persons involved at [the Department]
What is the status of the tenement? Expired, pending, is it held by [name redacted] etc.
By email dated 27 September 2016, Leopard's officer thanked the advisors for their time at the meeting and stated further:[34]
I have been back through the various letters to and from the [Department] and ministers [sic] office and have attached various for your records.
…
As discussed, we need to have this resolved for our shareholders as they are being unfairly affected considering the expenditure and subsequent value of the asset is being compromised by an oversight of the previous [text redacted]. Based on the previous expenditure being 6x the minimum requirement it is clear that the intention was never to let the [exploration licence] lapse and due to this oversight other opportunistic parties have taken the opportunity to take away the asset from [Leopard's] shareholders.
The [exploration licence] payment was paid within the timeframe verbally suggested by the [Department] at the time. To date that payment remains with the [Department] and [Leopard] has had 18 months of waiting with to and fro between [the Department] and [name redacted]. It is very frustrating for us as directors and also for our shareholders who have all but lost faith in our board on the basis we are not providing them answers.
Your assistance would be greatly appreciated. (emphasis added)
[34] Primary reasons [31]; GAB 46.
The primary judge summarised Leopard's submission, as it emerged from the correspondence from Leopard's officer to the advisors, to have been that:[35]
[T]he expiration of Leopard's exploration licence occurred through an oversight, or was brought about by allegedly incorrect advice from the Department and thus occurred through no fault of Leopard's; that Leopard had expended a considerable amount of money in exploration activities; the other applications (including the Paterson application) were from 'opportunistic' parties who, implicitly, were not genuinely seeking an exploration licence over the Land in order to engage in mineral exploration; and that in all the circumstances it would be unfair to Leopard not to grant it another exploration licence.
[35] Primary reasons [32].
By email dated 28 September 2016, the advisors thanked Leopard's officer for 'forwarding the additional correspondence as discussed'.[36] The primary judge noted that there was no evidence as to what that correspondence was.[37] The email went on to state: 'We are following it up and will be in touch as soon as we can'.[38]

September 2016: the Department's briefing note to the Minister on the s 111A application

[36] Primary reasons [33]; GAB 45.

[37] Primary reasons [33].

[38] GAB 45.

The briefing note dated 28 September 2016, to which we have already referred, was sent by the Acting Director General of the Department to the Minister for the stated purpose of enabling the Minister to 'consider the submissions made by [Leopard] to refuse in the public interest, four competing tenement applications and instead grant [Leopard's application]'.[39]
[39] Primary reasons [22] - [23]; GAB 73.
The briefing note set out, in considerable detail: the background against which the Minister's decision was to be made, including the expiration of Leopard's exploration licence and the making of the other applications; the scope of the Minister's powers under s 111A and s 59(6) of the Act; the identity of the applicants for the exploration licence and the outcome of the ballot; the making of the s 111A application; the submissions process in respect of that application; the documents received from each party during the course of the submissions process and a summary of their contents; and a summary of the communications received from Leopard following the submissions process.[40]
[40] Primary reasons [23]; GAB 73 - 82.
The briefing note dealt at length with the issue of procedural fairness, detailing Leopard's complaints and the Department's response to, and rejection of, those complaints.[41] In relation to the communications made by Leopard following the submissions process, the briefing note stated:[42]
Should you be mindful of accepting the additional comments made by Leopard then these comments would need to be exchanged with the other affected party. These comments are viewed by [the Department] as additional comments to the submission exchange process and the affected parties have not had a right of reply ensuring procedural fairness.
[41] Primary reasons [24]; GAB 80 - 82.
[42] Primary reasons [26]; GAB 82.
The briefing note then set out three alternative recommended courses of action for the Minister:[43]
Following consideration of the submissions lodged by all parties that you determinate [sic] to:
1)allow [Mr Paterson's application and the other applications] to proceed through the determination process under the Mining Act and the Native Title Act 1993 (Cth); or
2)refuse [Mr Paterson's application and the other applications] in the public interest, pursuant to section 111A of the Mining Act, and allow [Leopard's application] to proceed through the determination process under the Mining Act and Native Title Act 1993 (Cth); or
3)accept the additional responsive comments from Leopard in the letter sent to you on 30 June 2016. Request [the Department] exchange these comments with the other affected parties as part of the submission exchange process, seeking their further responsive comments, and then forward this matter back to you for your determination.
There was no reference, in the briefing note, to the communications between Leopard's officer and the advisors.

November 2016: email from advisors to Leopard

[43] Primary reasons [27]; GAB 82.

By email dated 21 November 2016, the advisors advised Leopard's officer that '[t]he matter is likely to be presented to the Minister this week for a decision'.[44]

November 2016: the Minister's decision on the s 111A application

[44] Primary reasons [34]; GAB 44.

On 28 November 2016, the Minister signed the second of the three alternative courses of action recommended in the briefing note - that is, that he 'refuse [Mr Paterson's application and the other applications] in the public interest, pursuant to s 111A of the Mining Act, and allow [Leopard's application] to proceed through the determination process under the Mining Act and Native Title Act 1993 (Cth)'.[45]
[45] Primary reasons [35]; GAB 82.
There was no evidence before the primary judge that the Minister provided Mr Paterson with a written decision in respect of the s 111A application.[46] Mr Paterson was notified of the Decision by a letter from the Department dated 13 December 2016, which stated:[47]
You will recall that Leopard lodged a submission with the [Minister] seeking his intervention pursuant to section 111A of the [Act] to have your application refused.
A submission exchange was facilitated by this Department at the request of the [Minister]. I note that you engaged fully in that process and lodged a submission and subsequently provided responsive comments to [Leopard's] submission.
Having carefully considered all submissions and responsive comments submitted in the process, the Minister refused the above application and has determined that Leopard's new application … should proceed to determination.
[46] Primary reasons [36].
[47] Primary reasons [36]; GAB 43.

Statutory framework

The following outline of the statutory framework is not materially different from the primary judge's outline.
The Minister is given the power to grant exploration licences by s 57(1) of the Act. This power may only be exercised after the Minister has received:
(1)an application for an exploration licence; and
(2)a recommendation from the mining registrar, if there is no objection to the application, or the mining warden, if there is an objection to the application, as to the grant or refusal of the exploration licence.[48]
[48] The Act, s 57(1), read with s 59.
An application for an exploration licence must comply with the requirements in s 58(1) of the Act. Where more than one application for an exploration licence is received, the applicant who first lodged their application in the prescribed manner and in compliance with s 58(1) has 'the right in priority over every other applicant to have granted to him' the exploration licence.[49] Where, as here, two or more applications are lodged at the same time, priority is to be determined, unless there is agreement between the applicants, by a ballot conducted by the warden.[50] The effect of an applicant having a 'right in priority' is not that the Minister is bound to grant that applicant's application.[51] Rather, it is that the Minister must bear in mind that that applicant has priority, so, where all other things are equal, that applicant's application will succeed.[52]
[49] The Act, s 105A(1).
[50] The Act, s 105A(3).
[51] Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149, 170, 178.
[52] Hot Holdings (169 - 170).
If no party objects to the grant of an application for an exploration licence, the mining registrar must forward the Minister a report which recommends the grant or refusal of the exploration licence and sets out the reasons for that recommendation.[53] If a notice of objection is lodged, the mining warden must hear the application for the exploration licence and may give any person who has lodged a notice of objection an opportunity to be heard.[54] Following this, the mining warden must forward to the Minister a report which recommends the grant or refusal of the exploration licence and sets out the reasons for that recommendation.[55]
[53] The Act, s 59(2).
[54] The Act, s 59(4).
[55] The Act, s 59(5).
Pursuant to s 59(6) of the Act, upon receipt of the report from the mining registrar or mining warden, the Minister may grant or refuse the exploration licence as the Minister thinks fit.[56]
[56] The Act, s 59(6).
The Minister also has power to refuse an application for any mining tenement, including an exploration licence, under s 111A of the Act. Among other things, it permits the Minister to refuse an application if the Minister is satisfied, on reasonable grounds in the public interest, that the application should not be granted.[57]
[57] The Act, s 111A(1)(b), read with s 111A(1)(c)(ii).

Primary proceedings

In the primary proceedings, Mr Paterson challenged the validity of the Decision, advancing, in substance, two grounds. The first ground complained that the Minister failed to provide Mr Paterson procedural fairness in making the Decision, in that he failed to give Mr Paterson an opportunity to be heard in relation to Leopard's further communications.[58] The second ground, put in the alternative, was that the Minister demonstrated actual or apprehended bias in the decision-making process.[59]
[58] Primary reasons [47].
[59] Primary reasons [47]. The primary judge noted that the parties proceeded in argument on the basis that what was asserted was apprehended bias only: primary reasons [48].
Mr Paterson succeeded on the first ground and, consequently, the primary judge found it unnecessary to decide the second ground.[60]
[60] Primary reasons [86].

The decision of the primary judge

In determining whether prerogative relief should be granted to Mr Paterson, the primary judge stated that the following issues required consideration:[61]
(1)whether the power under s 111A(1)(c) of the Act was required to be exercised in accordance with the requirements of procedural fairness;
(2)if so, whether the Minister afforded procedural fairness to Mr Paterson in this case; and
(3)if the Minister had failed to afford procedural fairness, whether there was any reason why certiorari should not be granted to quash the Decision.

Is the power under s 111A(1)(c) of the Act required to be exercised in accordance with the requirements of procedural fairness?

[61] Primary reasons [49].

The parties were in agreement that the power in s 111A of the Act was to be exercised in accordance with the requirements of procedural fairness.[62] Nevertheless, the primary judge considered whether, and found that, in exercising power under s 111A(1)(c) of the Act to make the Decision, the Minister was required to afford procedural fairness to Mr Paterson.[63] As there was no challenge on appeal, it is not necessary to outline her Honour's reasons for this conclusion.
[62] Primary reasons [50].
[63] Primary reasons [52] - [62].
Her Honour also outlined, in a manner not challenged on appeal, legal principles concerning the hearing rule aspects of procedural fairness.[64] We will refer to some of the principles stated by the primary judge in resolving ground 1.

Did the Minister afford procedural fairness to Mr Paterson?

[64] Primary reasons [64] - [68].

The primary judge stated that, in her view, the Minister failed to afford procedural fairness to Mr Paterson in that he failed to give Mr Paterson the opportunity to respond to new matters raised by Leopard's officer in the course of what she termed the 'ex parte communications'.[65] The 'ex parte communications' were said to be Leopard's submissions provided to the Minister on 30 June 2016, the emails between Leopard's officer and the advisors between 2 September 2016 and 21 November 2016, and the meeting held on 27 September 2016 between Leopard's officer and the advisors.[66] We will refer to these communications as the subsequent Leopard communications.
[65] Primary reasons [74].
[66] Primary reasons [72](i).
Before explaining her reasons for that conclusion, the primary judge dealt with the question, which remains in dispute on appeal, whether it could be inferred that the matters discussed in the subsequent Leopard communications between Leopard's officer and the advisors were relayed to the Minister for the purposes of making the Decision.[67] The primary judge gave the following four reasons for drawing the inference:[68]
(1)The advisors were principal policy advisors to the Minister, who worked in the office of the Minister; they were not officers of the Department.
(2)The meeting on 27 September 2016 was held in response to a request to meet with the Minister himself. By inference, the advisors were to meet with Leopard's officer on the Minister's behalf.
(3)It was apparent from the email communications that Leopard's officer sought to convey information to the Minister, through the advisors, for the Minister's consideration in making the Decision.
(4)It was apparent that information was provided to the advisors and they indicated that they were 'following it up'. To the primary judge, it was difficult to see how or why any 'follow up' might have occurred other than by the involvement of the Minister.
[67] Primary reasons [75].
[68] Primary reasons [75].
In the primary judge's view, in all of these circumstances, it was inconceivable that the advisors would have met with Leopard's officer, and received information from that person, and not conveyed that information to the Minister in connection with the decision that he was required to make.[69] This conclusion is challenged by ground 4 of the appeal.
[69] Primary reasons [76].
The primary judge then turned to address two specific contentions of Mr Paterson. First, her Honour rejected Mr Paterson's contention that, by failing to provide Mr Paterson with notice of the meeting on 27 September 2016, and failing to permit Mr Paterson to attend that meeting, the Minister denied a fair hearing to Mr Paterson. Her Honour considered that nothing in s 111A of the Act requires the Minister to hold a hearing to receive oral submissions. The judge pointed to the fact that the decision‑maker is the Minister rather than, for example, the mining warden, and that the Act otherwise specifies when a hearing to receive evidence is required.[70]
[70] Primary reasons [77].
Secondly, her Honour considered Mr Paterson's contention that, because the subsequent Leopard communications constituted a departure from the process the Department had adopted for dealing with the s 111A applications, that necessarily constituted a denial of procedural fairness to Mr Paterson. The primary judge considered that contention unnecessary to decide given her conclusion that the departure from the process in this case meant Mr Paterson was not afforded the opportunity to respond to new information raised by Leopard which was credible, relevant and significant for the purposes of a decision under s 111A and which included material adverse to Mr Paterson.[71] The primary judge turned to explain why that was so.
[71] Primary reasons [78].
The primary judge listed, in broad terms, in a manner not challenged on appeal, the matters addressed in the subsequent Leopard communications, as follows:[72]
[72] Primary reasons [80].
•the circumstances in which Leopard's exploration licence had expired, without an application to extend its term having been made;
•Leopard's considerable expenditure on exploration activities during the term of its licence, and during a period when many other explorers were not meeting their exploration expenditure requirements, and which was said to demonstrate a real commitment to exploration on Leopard's part;
•Leopard's view that the process adopted by the Department for dealing with the s 111A application had denied procedural fairness to Leopard;
•Leopard's response to the submissions made in respect of [Mr Paterson's application], and the other applications, including its contention that many of those submissions were factually incorrect in certain respects;
•Leopard's characterisation of the other parties who had made the other applications, including Mr Paterson, as 'opportunistic parties [who] have taken the opportunity to take away the asset from the [Leopard] shareholders';
•the long delay in the making of the Decision, and the uncertainty and frustration that that was creating for Leopard's board and its shareholders;
•the fact that Leopard had paid the rent on the exploration licence, and that that had not been refunded despite the very lengthy delay;
•the contention that s 111A of the [Act] existed to enable the Minister to remedy an injustice which would arise from the strict application of the processes of the Act, and that the power had been used for this purpose in the past, and that that precedent warranted the use of the power for the same purpose in this case; and
•why considerations of fairness required that the Minister refuse [Mr Paterson's application] and the other applications pursuant to s 111A and enable [Leopard's application] to proceed for determination.
The primary judge observed that there was no doubt that most of that information was the same, or similar, to that which had already been provided by Leopard to the Department (and in turn conveyed to the other parties).[73] However, her Honour considered it to be clear that not all of that material had previously been raised, including:[74]
•the adverse implications for Leopard of the long delay in making the Decision, including the financial implications of the rent not having been refunded;
•Leopard's characterisation of the other applicants for an exploration licence as 'opportunistic' which had a negative connotation associated with a lack of genuine intent on their part (as opposed to financial capacity) to pursue exploration activities on the Land;
•the purpose behind s 111A and the circumstances in which it had been used in the past; and
•(to a lesser extent, as these had already been raised, at least in part) general considerations of fairness supporting the refusal of the other applications under s 111A, so as to permit [Leopard's application] to proceed to determination.
[73] Primary reasons [81].
[74] Primary reasons [81].

The primary judge then stated, '[a]t first blush, there does not appear to be any reason for concluding that such material was not "relevant, credible and significant" for a decision under s 111A'.[75] That observation is the subject of ground 1. We will say more about the judge's reasoning in this respect in dealing with that ground.
[75] Primary reasons [82].
For completeness, the primary judge stated that it was not possible to ascertain with certainty what matters were raised with the advisors in the subsequent Leopard communications. However, it was unnecessary to consider whether other information may have been provided given that, on the basis of the evidence, her Honour could conclude that there was new relevant, credible and significant information conveyed to the Minister.[76]

Is there any reason why the Decision should not be quashed?

[76] Primary reasons [83].

The primary judge noted that a failure to afford procedural fairness will ordinarily warrant a grant of prerogative relief, but that relief may be refused in a case where compliance with the requirements of procedural fairness could have made no difference to the outcome of the proceeding.[77]
[77] Primary reasons [87].
In the primary judge's view, this was not a case in which the opportunity to respond to the new material could not have made a difference to the outcome of the Minister's decision under s 111A of the Act.[78]
[78] Primary reasons [91].
For the reasons her Honour had already outlined, relevant, credible and significant new information was provided to the Minister in the course of the subsequent Leopard communications. That was not information which could obviously have been ignored or put to one side by the Minister. The failure to provide Leopard with the opportunity to respond to the material not previously raised gave rise to a practical injustice. Among other things, had Mr Paterson been given the opportunity, he would have refuted the suggestion that he was an 'opportunistic' applicant by providing (more) information to demonstrate his genuine intention to engage in exploration activities on the Land, which was not something previously in issue.[79]
[79] Primary reasons [90].

Grounds of appeal

Leopard appeals on the following four grounds:[80]
(1)The primary judge erred in law by failing to positively find that the material identified in [58] above was relevant, credible and significant for the Decision.
(2)The primary judge erred in fact and law by finding that the material identified in [58] above was new or, individually or collectively, relevant, credible and significant for the Decision.
(3)The primary judge erred in fact by finding that the briefing note did not set out the reasons for the Decision.
(4)The primary judge erred in fact by finding that the subsequent Leopard communications were relayed to the Minister.
[80] WAB 5.

Legal principles

As we have said, it is not, and was not, in doubt that, in exercising power under s 111A of the Act, the Minister is obliged to accord procedural fairness to the applicants whose application the Minister is contemplating terminating or summarily refusing. This court's decision in Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd[81] proceeded on the basis that the Minister's exercise of power under s 111A was subject to a requirement to afford procedural fairness.[82] See also Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum.[83]
[81] Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403.
[82] See Ex parte Cazaly [259] - [364].
[83] Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [101].
In Ex parte Cazaly, Buss JA, with whom Wheeler JA and Pullin JA relevantly agreed, outlined the presently relevant principles concerning what procedural fairness requires, by reference to the leading decisions of the High Court, namely Kioa v West[84] and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs,[85] as follows:[86]
[84] Kioa v West [1985] HCA 81; (1985) 159 CLR 550.
[85] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88.
[86] Ex parte Cazaly [280] - [282].
In VEAL, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ noted, at 95 [14], that it was not useful to begin the inquiry about procedural fairness by examining what the Tribunal said in its reasons. Rather:
… as procedural fairness is directed to the obligation to give the appellant a fair hearing, it is necessary to begin by looking at what procedural fairness required the Tribunal to do in the course of conducting its review.
The joint judgment in VEAL then referred, at 95 [15], to the well‑known statement of Brennan J in Kioa, at 628 ‑ 629, as to the appropriate procedure when an administrative decision-maker has information available that is adverse to the interests of a person who will be affected by the decision. Brennan J enunciated, at 629, two propositions. First, 'in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made'. Secondly, '[i]nformation of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information'. In VEAL, the joint judgment considered, at 95 ‑ 96 [16] ‑ [17], the meaning to be ascribed to the passage 'adverse information that is credible, relevant and significant to the decision to be made' in Brennan J's judgment. Their Honours said, relevantly:
… what Brennan J said about 'information that is credible, relevant and significant' takes its meaning from the point his Honour had made [at 628] only a few sentences earlier: that '[a]dministrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made'. Moreover, what is meant by 'credible, relevant and significant' must be understood having regard also to the emphasis that his Honour had given earlier in his reasons [at 622] to the fundamental point that principles of natural justice, or procedural fairness, 'are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise'. Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached.
It follows that what is 'credible, relevant and significant' information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. 'Credible, relevant and significant' must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is 'credible, relevant and significant' are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.
The joint judgment concluded, at 96 [18], that it did not follow from the Tribunal's statement, in its reasons, that it gave no weight in reaching its decision to the letter or its contents, that there was no obligation to reveal the information to the appellant and give him an opportunity to respond to it before the Tribunal concluded its review. Further, the Tribunal's obligation to accord procedural fairness to the appellant was not discharged in consequence of the Tribunal deciding that it could decide the application for review on other bases.
Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ then turned their attention, at 97 [19], to whether the letter had or might have had some subconscious effect upon the Tribunal. Their Honours approved the observation of Allsop J in NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561 at 583 [84] that 'the necessity to disclose [adverse information] in order to accord procedural fairness is not based on answering a causal question as to whether the material did in fact play a part in influencing the decision'. Asking whether, despite what was said in its reasons, the Tribunal may have been subconsciously affected by the information in the letter, distracted attention from the relevant inquiry. Their Honours noted:
'The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached.'
The joint judgment held, at 99 [27], that the Tribunal should have informed the appellant of the substance of the adverse allegations in the letter. Although the Tribunal had sought to act fairly, the procedure it adopted was unfair. (italics in original, underlining added)
In oral submissions in support of ground 1, Leopard submits that:[87]
(1)the test, in order to show a breach of the requirements of procedural fairness, is that stated by Brennan J in Kioa, namely that the additional material is 'credible, relevant and significant';
(2)what was said in VEAL was merely a descriptive phrase which should not be taken to detract from that test, and should not be substituted for it; and
(3)her Honour erred in, in effect, substituting what was said in VEAL for the Kioa test.
[87] Appeal ts 5 - 11, 36.
We do not accept these submissions. In our view, what is said in Kioa and what is said in VEAL should not be treated as separate or different statements of the applicable test. Rather, what is said in VEAL is an authoritative exposition of how the test stated in Kioa is to be understood and applied.

Ground 1: did the primary judge fail to positively find that the subsequent Leopard communications were relevant, credible and significant?

Ground 1 fixes on a single sentence in the primary judge's reasons, namely her Honour's statement at [82] that there did 'not appear to be any reason for concluding that such material was not "credible, relevant and significant" for a decision under s 111A'.[88] Leopard contends, in effect, that the primary judge failed to make a positive finding that the material was 'credible, relevant and significant'.[89] Leopard further contends that the primary judge's reasons contain no analysis of the question.[90]
[88] Primary reasons [82].
[89] Leopard's submissions [6].
[90] Leopard's submissions [5]; appeal ts 14 - 15.
In our view, these submissions are without merit. The impugned statement should be read in the context of the whole paragraph, which is as follows:[91]
At first blush, there does not appear to be any reason for concluding that such material was not 'relevant, credible and significant' for a decision under s 111A. In the present case, it is not possible to say whether the Minister took these matters into account. That is because the Minister did not provide any reasons for the Decision, and the briefing note preceded some of the ex parte communications. However, it is not necessary for Mr Paterson to show that the material played a part in influencing the Minister's decision.[92] It suffices that the new material cannot be described as material that obviously could be dismissed from further consideration by the Minister.
[91] Primary reasons [82].
[92] VEAL [18] ‑ [19].
It can be seen that her Honour correctly observed that it was not necessary to show that the material played a part in influencing the Minister's decision. Her Honour applied what had been said in VEAL,[93] that it was enough, for material to be credible, relevant and significant, that the new material 'cannot be described as material that obviously could be dismissed from further consideration by the Minister'.[94]
[93] VEAL [17].
[94] Primary reasons [82]; VEAL [17].
Moreover, when her Honour's reasons are read as a whole, as they must be, it is clear that her Honour made a positive finding that the relevant material was 'relevant, credible and significant'. Her Honour expressly so concluded in several passages of her reasons.[95] In so concluding, in one of those passages, her Honour observed that the material was not information which could obviously have been ignored or put to one side by the Minister.[96]
[95] Primary reasons [78], [83], [90].
[96] Primary reasons [90].
In oral submissions, Leopard further submits that what the primary judge said at [82] reveals legal error, in that the manner in which her Honour stated the position reversed the onus, by requiring Leopard to prove that the additional material was not credible, relevant and significant.[97] In our view, that submission goes beyond the scope of ground 1 which, in substance, complains that the judge determined the case without making a finding that the material was relevant, credible and significant, when such a finding was necessary. In any event, we do not accept that what her Honour said reveals error in the manner contended, or at all. To the contrary, as explained below, her Honour's reasons demonstrate a correct understanding of the legal principles.
[97] Appeal ts 10.
On appeal, Leopard accepts[98] the correctness of her Honour's statement of the relevant legal principles as follows:[99]
A decision maker is not required to put a party on notice of every piece of information which he or she receives. However, if a decision maker receives information adverse to a party, and which is 'credible, relevant and significant' to the decision to be made [Kioa 628 - 629 (Brennan J); VEAL [15] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ)] - in other words, information which cannot be dismissed from further consideration by the decision maker before making the decision [VEAL [16] ‑ [17] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ)] - the party should be advised of at least the substance of that adverse information and given the opportunity to respond. The requirement to disclose adverse information in order to afford procedural fairness does not depend on whether it can be shown that the adverse material played a part (whether consciously or not) in influencing the decision [VEAL [18] ‑ [19] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ)].
[98] Appeal ts 9 - 10.
[99] Primary reasons [67].
Her Honour's reasons in [82] are expressed in a manner that is consistent with, and indicates an application of, those principles.
For these reasons, ground 1 fails. We note that, in any event, as Leopard accepts,[100] success on ground 1 would not lead to the upholding of the appeal, which hinges on the success of ground 2.
[100] Appeal ts 12.
It is convenient to deal with grounds 3 and 4, which concern inferences of fact drawn by the primary judge, before turning to ground 2.

Ground 4: were the subsequent Leopard communications relayed to the Minister?

Ground 4 challenges the primary judge's finding that the information received by the Minister's advisors, in the emails from Leopard's officer to the advisors in September 2016, and the meeting held on 27 September 2016 between Leopard's officer and the advisors, was relayed to the Minister. Leopard submits, correctly, that there was no evidence as to how, when and by whom the information was conveyed to the Minister.[101] Leopard invites the inference that, because the Minister has given notice that he will abide by the decision at first instance, and on appeal, the Minister considers that he did accord Mr Paterson procedural fairness.[102] Leopard submits that, in those circumstances, in light of the evidence of the briefing note, it was not open to the primary judge to infer that the subsequent Leopard communications were conveyed to the Minister.[103] Further, Leopard submits that, even if there was a notional presentation, it was not open to the judge to infer that the Minister 'received or paid any attention to' that information.[104]
[101] Leopard's submissions [41].
[102] Leopard's submissions [42], referring to Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [92], [143], [317] and Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 [71], [72].
[103] Leopard's submissions [43].
[104] Leopard's submissions [43].
The cases relied on by Leopard provide no support for the drawing of the inference invited by Leopard in this case. That is so for at least two reasons. First, in those cases, the court explained why an adverse Jones v Dunkel inference could not be drawn against the Minister. Secondly, in those cases, unlike in this case, the Minister was the active contradicting party in the proceedings.
That leaves only the absence of evidence as to the details of how, when and by whom information was conveyed to the Minister. The absence of that detail is no impediment to the inference drawn by the primary judge. Her Honour's reasons for drawing this inference, summarised at [53] above, are compelling.
For these reasons, ground 4 fails.

Ground 3: did the briefing note set out the Minister's reasons for the Decision?

Ground 3 contends that the primary judge erred in fact in finding that the briefing note did not comprise the reasons for decision of the Minister.
Leopard submits that the Minister's selection of the second option in the briefing note, in the face of being presented with a third option of accepting the additional responsive comments from Leopard and taking consequential steps, is evidence that, in making the decision, no regard was had to any of the subsequent Leopard communications.[105]
[105] Leopard's submissions [36].
Leopard further submits that there is an absence of evidence, notwithstanding the making of an application by Mr Paterson under the Freedom of Information Act 1992 (WA), of documents contradicting an inference that the Minister's reasons were set out in the briefing note.[106]
[106] Leopard's submissions [38].
For two reasons, we would not accept these submissions. First, we reject Leopard's challenge to the inference of fact drawn by the primary judge. In circumstances where Leopard's challenge to the judge's finding that the subsequent Leopard communications were conveyed to the Minister fails, there is no adequate foundation for an inference that the briefing note reflects or reveals the Minister's reasons for the Decision.
Secondly, and in any event, ground 4 having failed, Leopard's challenge to a finding concerning the Minister's reasons goes nowhere. As explained in VEAL, evaluation of whether a failure to provide an opportunity to deal with adverse information breached the requirements of procedural fairness is not assisted by asking whether that material formed part of the decision‑maker's reasoning process.[107]

Ground 2: did the subsequent Leopard communications contain new, relevant, credible and significant information?

Ground 2: Leopard's submissions

[107] VEAL [14] - [19].

Leopard submits that none of the four matters identified by the primary judge are new, or constitute relevant, credible and significant material, for the purposes of the Decision. For convenience, the four matters are:
•the adverse implications for Leopard of the long delay in making the Decision, including the financial implications of the rent not having been refunded;
•Leopard's characterisation of the other applicants for an exploration licence as 'opportunistic' which had a negative connotation associated with a lack of genuine intent on their part (as opposed to financial capacity) to pursue exploration activities on the Land;
•the purpose behind s 111A and the circumstances in which it had been used in the past; and
•(to a lesser extent, as these had already been raised, at least in part) general considerations of fairness supporting the refusal of the other applications under s 111A, so as to permit [Leopard's application] to proceed to determination.
Leopard submits that the first matter is not new because it is a function of the Act and the Mining Regulations 1981 (WA) (specifically s 58(1)(c) and reg 64(1C)), which was known to the Minister and Mr Paterson at all times.[108] Further, the effluxion of time is not a new matter, and even it were, it is a matter that was always known.[109]
[108] Leopard's submissions [12].
[109] Leopard's submissions [12].
Leopard submits further that the first matter was not relevant, credible or significant to the Decision. That is because it cannot reasonably be thought that the pendulum swings in favour of Leopard with the passing of time, in circumstances where the Department continues to hold the late rent for the dead tenement deposited by Leopard and the first year of rent deposited by both Leopard and Mr Paterson as part of their competing tenement applications.[110]
[110] Leopard's submissions [13]; appeal ts 21.
In relation to the second matter, Leopard submits that it is not reasonably open to suggest that 'opportunistic' conveys a negative connotation of a lack of genuine intent on Mr Paterson's part to explore the land. Leopard submits that, in its proper sense, 'opportunistic' is a neutral word, especially in the context and scheme of an Act which permits and encourages parties to take opportunities of this type.[111]
[111] Leopard's submissions [16].
Leopard submits further that the characterisation of the other applicants as 'opportunistic' is not a new matter in circumstances where Mr Paterson had already advocated his plans and capacity to explore the land.[112] Leopard submits that there is no breach of procedural fairness to deny a party a further occasion to repeat what has already been said, or to advance the same argument differently or more emphatically.[113]
[112] Leopard's submissions [17], referring to passages in Mr Paterson's letters set out at [14](4) and [18] above.
[113] Leopard's submissions [17].
In relation to the third matter, Leopard submits that the purpose behind s 111A and the circumstances in which it had been used in the past are not new matters. It says that Mr Paterson had already advised the Minister of his views on these matters in his responsive comments by making the statements outlined at [17] above.[114]
[114] Leopard's submissions [21]; appeal ts 37.
Leopard submits further that the Rio Tinto example given in the email sent by Leopard's officer to the advisors on 26 September 2016, outlined at [29] above, was not a relevant, credible or significant matter.[115] This is put on two bases. First, the Minister is not required to follow or be persuaded by previous ministerial decisions under s 111A of the Act.[116] Secondly, the possible responses by Mr Paterson on the issue - that the Minister is not bound in any way by the example and that the circumstances of Leopard's application are different - are self‑evident.[117]
[115] Leopard's submissions [23].
[116] Leopard's submissions [24].
[117] Leopard's submissions [25].
In relation to the fourth matter, Leopard submits that there is no material to which Mr Paterson did not receive an opportunity to respond in his earlier submissions. Leopard notes that the primary judge expressly stated that these matters 'had already been raised, at least in part'.[118] Leopard submits further that any 'new material' could only be Leopard's reference to the frustration or effect on Leopard's shareholders and directors of unintentionally allowing its mining tenement to lapse.[119] To Leopard, this matter is so self‑evident as to not be relevant, credible and significant for the Decision.[120]
[118] Leopard's submissions [29].
[119] Leopard's submissions [30], referring to an email sent by Leopard's officer to the advisors set out at [31] above.
[120] Leopard's submissions [30].
Therefore, Leopard submits that none of the matters identified by the primary judge, either alone or in combination, required a response from Mr Paterson in order to afford him procedural fairness in the making of the Decision.[121]

Ground 2: disposition

[121] Leopard's submissions [31].

In our view, for the reasons below, both the second and third of the matters identified by the primary judge were new, and were credible, relevant and significant, for the purposes of the Decision.
Whether a new matter is, in the relevant sense, credible, relevant and significant must be evaluated having regard to the considerations relevant to the power being exercised. The power under s 111A is broad in character, to be exercised by reference to the 'public interest'. In this context, the concept of the public interest has a broad connotation, and imports a discretionary value judgment by reference to undefined factual matters, confined only by the subject matter, scope and purpose of the relevant statutory provision.[122] The breadth of the Minister's power, and of the considerations to which the Minister was entitled to have regard, creates challenges for any contention that particular material was not relevant.
[122] Ex parte Cazaly [80], [90].
In our view, the real questions are whether the material was new and whether it was significant.
We begin with the third matter: the purpose of s 111A, and the circumstances in which the power had been exercised in the past.
The Leopard officer's email of 26 September 2016 set out reasons that it advanced for why the Minister should intervene in favour of Leopard.[123] Those reasons included the following:[124]
There is a very sound reason why the Minister is given absolute discretion whether to grant an [exploration licence] regardless of any warden's recommendation or failure to observe a requirement of the Mining Act. From time to time circumstances arise where a strict application of the processes of the Act would result in injustice which the Minister (who is entitled to take a broad view of the industry) is given the power to remedy (eg when RioTinto inadvertently failed to lodge an application in time, the Minister overlooked that failure so that he could protect RioTinto's title because of the company's genuine contribution to the industry).
We believe the example above demonstrates precedence and that our circumstances deserve the same level of discretion, in the interest of fairness and for the benefit of all the individual shareholders. (emphasis added)
[123] The relevant passages of the email are set out at [29] above.
[124] Primary reasons [29]; GAB 82.
Leopard thus invited the Minister to adopt the same approach, in the exercise of power under s 111A, as had been taken in a case involving Rio Tinto, and suggested that Leopard's circumstances 'deserve the same level of discretion'.
While, as Leopard submits, Mr Paterson had referred, in general terms, to previous cases in the passage of his letter set out at [17] above, Leopard's specific reliance on a particular previous example as analogous to its case was, in the relevant sense, a new matter. Leopard accepts as much.[125]
[125] Leopard's submissions [23].
Further, in our view, the Rio Tinto example was credible, relevant and significant in the sense explained in VEAL. It was something which the Minister might consider, in the course of making his decision, to determine what, if any, weight to give it. It was not something which could, at that stage, be dismissed from further consideration.
It is true, as Leopard submits,[126] that the Minister is not required to follow previous ministerial decisions under s 111A. However, that does not preclude the Minister from having regard to, and giving significant weight to, the approach taken in a previous situation having some analogy with the circumstances of the case under consideration.
[126] Leopard's submissions [24].
Leopard also submits that the possible responses by Mr Paterson to this example - that the Minister is not bound by the Rio Tinto example and that the circumstances of Leopard's application are different - were self‑evident.[127] Even if that were so, Mr Paterson should have had the opportunity to develop a submission as to why, and in what respects, Leopard's application was materially different from that involving Rio Tinto.
[127] Leopard's submissions [25].
The weight, if any, to be given to the Rio Tinto example was a matter within the discretion of the Minister. Whether any, and if so what, weight was to be given to the Rio Tinto example was not something that could be dismissed from further consideration. Rather, it was a matter to which consideration would or might be given in the course of making the decision. In our view, procedural fairness required that Mr Paterson had the opportunity to put submissions as to why the Rio Tinto example should be given no weight by the Minister in the exercise of his broad discretionary power under s 111A.
For these reasons, in our view, the primary judge was correct in finding that the third matter was new, and constituted credible, relevant and significant material, for the purposes of the Decision.
That conclusion is fatal to ground 2. There is an additional reason why we would reject ground 2. As explained below, we also agree with the primary judge's conclusion in connection with the second matter.
The second matter identified by the primary judge as new was Leopard's characterisation of the other applicants, including Mr Paterson, as 'opportunistic', which had a negative connotation associated with a lack of genuine intent to pursue exploration on the Land. The email sent by Leopard's officer on 27 September 2016 said, among other things, that:[128]
[b]ased on the previous expenditure being 6x the minimum requirement it is clear that the intention was never to let the [exploration licence] lapse and due to this oversight other opportunistic parties have taken the opportunity to take away the asset from [Leopard's] shareholders. (emphasis added)
[128] Primary reasons [31]; GAB 46.
It is true, as Leopard emphasises,[129] that the scheme of the Act includes provision by which there is an incentive, in the form of a priority right to apply for a replacement tenement, to apply for forfeiture of the current holder's tenement.[130] In the framework of the Act, Leopard's failure to seek an extension of its exploration licence created an opportunity for other parties to apply for a new exploration licence over the same land.
[129] Leopard's submissions [16].
[130] Forrest & Forrest [108].

However, it was open to the primary judge to find,[131] in the circumstances, that the Leopard officer's reference to 'opportunistic parties' can reasonably be read as conveying something more than merely that those parties had taken up such an opportunity. The reference to 'opportunistic parties', in the circumstances, can reasonably be taken to assert not only that Mr Paterson would be highly unlikely to demonstrate the same financial commitment to exploration as Leopard,[132] but also that his purpose was to deprive Leopard of the development potential of the tenements without any genuine intent on his part to pursue exploration activity on the Land. This may be, for example, because 'opportunistic parties' would, instead, simply seek to take advantage of the situation by offering to sell the exploration licence to Leopard or a third party for a substantial price.
[131] Primary reasons [32], [81].
[132] cf Leopard's responsive comments of 9 September 2015, referred to in [19] above.
In our view, the assertion that Mr Paterson's interest in the Land was opportunistic and, by implication, that he lacked a genuine intent to explore was relevantly new. That is so, notwithstanding that, in the passages of his earlier letters that are set out at [14] and [18] above, Mr Paterson had said that he intended to continue exploration on the tenement with a view to establishing an industry best-practice gold exploration program. In the context of the Minister's broad power to determine, in effect, whether the public interest favoured the holding of the tenement by Leopard or by Mr Paterson, the assertion that Mr Paterson was opportunistic, with the connotation referred to in [111] above, was capable of having real significance for the Decision; it was credible, relevant and significant. In our view, procedural fairness required that Mr Paterson be given an opportunity to make further submissions and provide further material to establish the genuineness of his intention, it having been called into question by Leopard's submissions.
For these reasons, ground 2 fails.

Conclusion

For the above reasons, none of the grounds of appeal has been made out. The appeal must be dismissed. We would hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Beech
16 MAY 2019