Croft v Minister for Energy and Resources

[2000] VSC 171

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 5020 of 2000

TERRY F. CROFT	Applicant
v
THE MINISTER FOR ENERGY AND RESOURCES and G.D.M. RESOURCES PTY LTD	Respondents

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 and 28 April2000
DATE OF JUDGMENT:	28 April 2000
CASE MAY BE CITED AS:	Croft v The Minister for Energy and Resources & Anor
MEDIUM NEUTRAL CITATION:	[2000] VSC 171

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Appeal from Master – application under Administrative Law Act – applicant aggrieved by Minister's decision – Minister not a tribunal – applicant not a "person affected" – no error demonstrated.

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APPEARANCES:	Counsel	Solicitors
For the Applicant appeared on his own behalf
For the Respondents	No appearance

HIS HONOUR: 

1. This is apparently an appeal by the applicant, Terry F. Croft, from an order made by Master Evans on 17 April 2000 made in an ex parte application by Mr Croft to the Master. 

1. A perusal of the affidavit relied upon by Mr Croft sworn 17 April 2000 before the Master does not identify the nature of the application he was in fact making to the Master.  According to the court record, Master Evans ordered that - "The appeal is dismissed".  Mr Croft informed this court that the Master dismissed his application because it was related to an existing appeal by Mr Croft to the Court of Appeal and the Master said he did not have jurisdiction to deal with it.  It is for those reasons that I have described the present application by Mr Croft to the judge in the Practice Court as "apparently an appeal". 

1. After some discussion between Mr Croft and the Bench, it was agreed that Mr Croft's application to the Master was for an order under the Administrative Law Act 1978 to review a decision made by the first respondent, the Honourable Candy Broad, Minister for Energy and Resources. A perusal of the affidavit relied upon by Mr Croft in support of this application does not refer to seeking a review of the decision made by the Minister, nor does it specify any grounds of review. The explanation by Mr Croft from the Bar table as to the reasons given by the Master muddies the waters rather than clarifies the position. However, as I said, I have discussed the matter with Mr Croft and it has been agreed that I should treat his application to the Master as an application for an order to review a decision made by the first respondent, the Minister, to grant exploration licences Nos. 4432 and 4433 to G.D.M. Resources Pty Ltd, which is joined as a second respondent to the present application.

1. Any application for review under the Administrative Law Act must be made not later than 30 days after the giving of the notification of the decision, or supplying the reasons thereof, whichever is the later:  see s.4. 

1. I am satisfied that the applicant is within time on the evidence before the court showing that he did not receive the reasons of the Minister for her decision, which were sent by post on 16 March 2000, until collected by him on 23 March.  He made application to the Master on 17 April 2000.  I am satisfied he did so within the 30‑day period.  I am also satisfied that he has brought his appeal before the court within five days of the Master's order, excluding the Easter and Anzac holiday break:  see Rule 77.05(3) of the Rules of Court.

1. As this appeal is a re-hearing de novo, the court proceeds to consider the application afresh, unfettered in any way by the Master's reasons or his order. 

1. Under s.3 of the Administrative Law Act, any person affected by a decision of the tribunal may make an application to this court for an order calling on the tribunal to show cause why its decision should not be reviewed. That is what the applicant sought before the Master and now seeks before me, as this is a re-hearing de novo.

1. In order to understand the application it is necessary to go back in time.  The plaintiff is a mining processing engineer.  On 22 June 1999 he submitted a tender to mine a number of blocks in the Wimmera region pursuant to the tender process instituted by the Government.  Section 27 of the Mineral Resources Development Act 1990 ("M.R.D. Act") empowers the Minister to call tenders to undertake exploration or mining on land that is not the subject of a licence.  After a consideration of the tenders the Minister may decide which tenderer is successful.  This enables the successful tenderer to apply for a licence to mine and develop the areas in question. 

1. Mr Croft made application, as did others, in relation to various blocks in the region.  Tenders were considered by a delegate of the Minister and in the end the then Minister awarded the tender for blocks 6 and 7 to the second respondent to this application.  Blocks 6 and 7 were two of the blocks tendered for by the applicant. 

1. On 24 August 1999, the second respondent applied for exploration licences Nos. 4432 and 4433, covering blocks 6 and 7.

1. Mr Croft made application under the Administrative Law Act to the court for an order to review the decisions of the delegate of the Minister and the Minister, which was made on 22 July 1999, whereby he decided that the successful tenderer for the blocks in question would be the second respondent.

1. On 20 October 1999, Master Wheeler granted an order for review listing a number of questions to be considered. The matter came on for hearing before Beach, J. on 17 November 1999 and in a reserved judgment handed down on 7 December 1999 his Honour held that the Minister was not obliged to act in a judicial manner towards the applicant and accordingly was not "a tribunal" within the meaning of s.2 of the Administrative Law Act. Accordingly he dismissed the proceeding.

1. Mr Croft appealed the decision of Beach, J. to the Court of Appeal.  Unfortunately he did not seek any order from either a trial judge or the Court of Appeal preserving the status quo pending the outcome of the appeal.  In the meantime, the new Minister issued licences to the second respondent on 15 December 1999.  The appeal before the Court of Appeal has not as yet been heard.

1. It is fairly clear from the affidavit sworn in support of the present application that the applicant is aggrieved by the fact that, although he has an appeal in relation to the tender process decision, the Minister proceeded to give effect to the tender process decision and granted licences pursuant to ss.25 and 26 of the M.R.D. Act. The point he makes in his affidavit is that if the Court of Appeal holds that he has the right to proceed with his order to review against the then Minister, and if he was successful on his order to review, he would be prejudiced by the steps taken by the Minister to give effect to the tender process by the grant of the licences.

1. As I have said, I doubt that Mr Croft appreciated what particular application he was making to the Master on 17 April this year, but, as appears from discussion with him, what he really intends by his application before the court this day is to seek a review of the decision of the Minister granting the two licences to the second respondent.  Indeed he did not suggest there was any other basis for invoking the jurisdiction of this court. 

1. As Mr Croft's affidavit did not disclose any grounds for a review, I adjourned the matter yesterday to enable him to consider his position and identify to the court what are the appropriate grounds.  I did point out to him yesterday that he should focus on a number of matters overnight to identify what he says are grounds upon which he could rely in an application under the Administrative Law Act. 

1. This morning, Mr Croft, now applies to adjourn indefinitely the appeal from the Master, to enable him to make an application to the Court of Appeal to seek some form of order which would preserve his position pending the hearing of the appeal.  I refused his application for an adjournment.  In my opinion the proceeding before the court should be dealt with and finalised and I propose to do so.  This proceeding raises a discrete issue.  It does not depend on the appeal to the Court of Appeal.  The applicant may, if so advised, approach the Court of Appeal to seek to preserve his position.

1. The grounds upon which a person aggrieved by a decision may seek to review a decision are:  lack of jurisdiction;  error in exercising the jurisdiction;  failure to give the person affected an opportunity to be heard;  bias in the tribunal;  fraud;  an attack upon the decision as not being supported by any credible evidence or being so unreasonable that no reasonable tribunal could have reached the decision. 

1. Another basis for attacking a decision is based upon what is known as the Wednesbury principle.  That in my view can only be utilised to attack a discretion which has been exercised and the basis of the attack is that no reasonable person could have possibly exercised the discretion in the way the authority did.  I refer to what was said by Lord Scarman in R. v. Secretary of State for the Environment ex parte Nottinghamshire County Council (1986) A.C.240 at 249. I also refer to what O'Bryan, J. said in Robbins v. Harness Racing Board [1984] V.R. 641. He took the view that, independently of the Wednesbury principle, it would be open to attack a decision of a tribunal on the ground that no reasonable tribunal could have arrived at the decision which it did. He made no reference in that case to the Wednesbury case.

1. So one can see that there are a number of grounds that one can utilise to attack a decision, but I should say that what I have said does not constitute an exhaustive list. 

1. I raised with Mr Croft yesterday what his grounds might be, and this morning he failed to disclose any grounds upon which one could attack the decision of the Minister.  What in essence he is saying is that he has an appeal in relation to the tender process, that if the appeal and the subsequent review were all successful in his favour, he may be prejudiced, or indeed would be prejudiced, by the step taken by the Minister.  But as the correspondence points out, he did raise this matter with the Minister, who informed him that an appeal did not stay the operation of any decision and accordingly she was proposing to proceed in accordance with the law.  Mr Croft failed to make any application to the Court of Appeal to preserve the position.

1. There is a statutory framework under the M.R.D. Act. Under that Act, once the tender process is finalised, the successful tenderer has the right to apply for a licence. It is clear that the unsuccessful tenderer does not have that right: see s.25(1)(g). Accordingly Mr Croft had no right to apply for the licence. Section 24 gives the right to any person to object to a licence being granted. As I have already stated, application had been made by the second respondent for the grant of the licences on the basis that that company had been the successful tenderer. That application having been made, it is open to any party to object to the licence being granted. If an objection is made, the person must put the grounds of his objection in writing and send it to the Minister. Mr Croft did not object to the licence being granted. Indeed it would be difficult to see on what basis he could. Clearly an unsuccessful tenderer in that capacity could not object to the licence being granted. There would have to be some other reason. It is unnecessary for me to say any more in relation to this because Mr Croft did not in fact object.

1. The statutory framework requires the Minister to consider the objections made.  Once the objections are considered, then the Minister may grant the licence to an applicant, provided certain matters specified by the Act are satisfied. 

1. I am satisfied that there is no suggestion in the affidavit material or any other evidence before the court that the Minister lacked power or authority to do what she did.  Further, there is no evidence before the court to suggest she did not lawfully grant the licences in question, i.e. that she failed to follow the procedures in determining to grant a licence.  When analysed, the true complaint of Mr Croft is that he was not given the opportunity to be heard on the application for the licences.  He has not placed any evidence or put any argument before me which would give him that right.  In my opinion, he was not entitled to be given an opportunity to be heard.  The Act set out the statutory framework in which the Minister was to act.  Mr Croft did not seek to put in any objections.  On no view could it be said that he had any right to be heard in relation to the application for the licences.  He was the unsuccessful tenderer, had no right to apply for a licence himself and did not put any objections to the grant.  In my opinion, in the circumstances, the Minister was not obliged to give him a hearing or indeed give him any reasons for the grant of the licences. 

1. Mr Croft referred to what the High Court said in Annetts v. McCann and Others (1990) 170 C.L.R.596 in the joint judgment at p.598 of Mason, C.J., Deane and McHugh, JJ. Their Honours said -

"It can now be taken as settled that when a statute confers a power upon a public official to destroy, defeat or prejudice a person's rights, interest or legitimate expectations the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment."

1. Mr Croft says that that statement of principle applies here.  I have little doubt that that statement of principle applies to a Minister of the Crown, but what Mr Croft has failed to establish is that what the Minister was proposing to do in any way prejudiced his rights, interests or legitimate expectations.  The fact was that he was an unsuccessful tenderer.  The law was then to be followed and the Minister did follow the law.  There was no order precluding her from continuing in that way.

1. Under s.3 of the Administrative Law Act Mr Croft has to show that he is "a person affected" by the decision of the Minister. "Person affected" is defined by s.2. In my opinion he is not a person affected by the decision made by the Minister and he had no expectation or interest in the granting of the licences and did not object to the grant of same.

1. But, even if I am wrong, I am satisfied that the Minister in the circumstances was not a "tribunal".  I say that because in my view the Minister was not bound to act in a judicial manner to the extent of observing one or more of the rules of natural justice in respect of Mr Croft.  I emphasise that she was not a tribunal in relation to Mr Croft.

1. Finally, Mr Croft, even if he is a person affected, and even if the Minister is a tribunal, has not persuaded me that there are any grounds to review the decision of the Minister.  I am satisfied she had the power to make the decision.  There is no evidence she did not perform her statutory powers and duties in relation to granting the licences, and, as I have already said, there is no basis for suggesting she owed any obligation to Mr Croft to observe the rules of natural justice, i.e., to give him the opportunity to be heard on the grant of the licences.  The fact was Mr Croft did not object to the grant of those licences.

1. Accordingly this appeal is dismissed.

1. I order that the appeal by the applicant, Terry F. Croft, against the order of Master Evans made 17 April 2000 is dismissed.