Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum - [2018] WASCA 32

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FORREST & FORREST PTY LTD -v- THE HONOURABLE WILLIAM RICHARD MARMION, MINISTER FOR MINES AND PETROLEUM [2018] WASCA 32

CORAM: BUSS P
MURPHY JA
BEECH JA

HEARD: 18 DECEMBER 2017

DELIVERED : 15 MARCH 2018

FILE NO/S: CACV 34 of 2017

BETWEEN: FORREST & FORREST PTY LTD
Appellant
AND
THE HONOURABLE WILLIAM RICHARD MARMION, MINISTER FOR MINES AND PETROLEUM
First Respondent
ONSLOW RESOURCES LIMITED
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MARTINO J
Citation  :FORREST & FORREST PTY LTD -v- THE HONOURABLE WILLIAM RICHARD MARMION, MINISTER FOR MINES AND PETROLEUM [2017] WASC 68
File No  :CIV 2633 of 2016

Catchwords:

Mining law - Miscellaneous licence - Whether appeal provided for by s 94(3) of the Mining Act 1978 (WA) is an appeal de novo or an appeal by way of rehearing - Whether necessary under s 94(3) of the Mining Act for the Minister to have before him the warden's reasons and materials before the warden

Administrative law - Judicial review - Whether primary judge failed to deal with a ground of judicial review - Duty to enquire - Whether Minister had a duty to enquire as to the materials necessary to determine the appeal - Procedural fairness - Whether failure by Minister to advise parties he did not have before him the warden's reasons and materials amounted to denial of procedural fairness - Unreasonableness - Irrationality - Whether Minister's decision was invalid for legal unreasonableness - Jurisdictional error - Whether the Minister bound to consider and take into account submissions - Whether Minister committed jurisdictional error or denied the appellant procedural fairness by not having regard to material before the warden and the warden's reasons allegedly incorporated by reference in submissions to the Minister

Practice and procedure - Application to amend grounds of appeal - Proposed ground not in terms in respect of which leave to amend was granted - Proposed ground raised new point on appeal - Late application to amend - Materials in support of proposed ground not in Green Appeal Book in application - No application to supplement Green Appeal Book

Legislation:

Mining Act 1978 (WA), s 91, s 92, s 94
Mining Regulations 1981 (WA), reg 91

Result:

Application to amend grounds of appeal refused
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant:     Mr S M Davies SC & Mr A J Papamatheos
First Respondent           :     No appearance
Second Respondent      :     Mr M McKenna & Ms J Procak

Solicitors:

Appellant:     Mizen & Mizen
First Respondent           :     No appearance
Second Respondent      :     All Mining Legal Pty Ltd

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245
Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation [1985] HCA 20; (1985) 156 CLR 651
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616
CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Deputy Federal Commissioner of Taxation for the State of South Australia v Ellis & Clark Ltd [1934] HCA 54; (1934) 52 CLR 85
DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226
Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Forrest & Forrest Pty Ltd v Onslow Resources Ltd [2014] WAMW 17
Forrest & Forrest Pty Ltd v The Honourable Richard Marmion, Minister For Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASC 68
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84
Helena Valley/Boya Association (Inc) v State Planning Commission (1989) 2 WAR 422
Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234
Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531
Lacey v Attorney‑General for the State of Queensland [2011] HCA 10; (2011) 242 CLR 573
McLennan v McCallum [2010] WASCA 45
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
O'Connell v Nixon [2007] VSCA 131; (2007) 16 VR 440
Onslow Resources Ltd v Forrest & Forrest Pty Ltd [2015] WAMW 8B
Pilcher v HB Brady & Co Pty Ltd [2005] WASCA 159
Plaintiff M47/2012 v Director‑General of Security [2012] HCA 46; (2012) 251 CLR 1
R v Syme; Ex parte Page [1970] WAR 153
Re Coldham; Ex parte Brideson [No 2] [1990] HCA 36; (1990) 170 CLR 267
Re Minister for Mines, Fuel & Energy; Ex parte Trythall (1991) 7 WAR 375
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Re Roberts; Ex parte Western Reefs Ltd v Eastern Goldfields Mining Company Pty Ltd (1990) 1 WAR 546
Re Ryan; Ex parte Travaglini [1979] WAR 23
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91
St Barbara Ltd v Minister for Energy, Resources, Industry & Enterprise [2008] WASCA 248
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
The Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73
Traut v Faustmann Bros Pty Ltd [1983] FCA 137; (1983) 48 ALR 313
Wallaby Grip Limited v QBE Insurance (Australia) Ltd [2010] HCA 9; (2010) 240 CLR 444
Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22
Werribee Council v Kerr [1928] HCA 41; (1928) 42 CLR 1

JUDGMENT OF THE COURT: This is an appeal against Martino J's decision in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum[1] (primary decision). That decision concerned an application by the appellant (Forrest) for judicial review of a decision of the first respondent (the Minister), made under s 94(3) of the Mining Act 1978 (WA) (Act). The Minister had upheld an appeal by the second respondent (Onslow) against a decision of Warden Maughan refusing to grant a new miscellaneous licence to Onslow, after Onslow's earlier miscellaneous licence[2] (licence 51) had been forfeited. The Minister upheld the appeal, conditional on the miscellaneous licence 'clearing the future act requirements of the Native Title Act 1993 (Cth)'.
[1] Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASC 68.
[2] Miscellaneous licence L08/51.
Forrest contended before the primary judge, and in this appeal, that the Minister misconceived the statutory nature of the appeal against the warden's decision, and that he committed other jurisdictional errors.
For the reasons which follow, the appeal should be dismissed.

Background

At all material times, Onslow held a mining lease, M08/458 (Mining Lease). Onslow mined sand and aggregate on the Mining Lease from the Ashburton riverbed.[3] Onslow is controlled by Mr Slater.[4]
[3] Primary decision [2].
[4] Primary decision [27].
Onslow's licence 51 was held over ground on which was constructed a roadway. The roadway provided access from Onslow's Mining Lease to a public road.[5] Both licence 51 and the Mining Lease were on the Minderoo pastoral lease, which was and is held by Forrest.[6]
[5] Primary decision [2]; Forrest & Forrest Pty Ltd v Onslow Resources Ltd [2014] WAMW 17 [1]; GB 100. (This decision is referred to later in these reasons as the 'Forfeiture Decision'.)
[6] Primary decision [2].
Onslow stockpiled certain material mined from its Mining Lease on licence 51, and also placed certain infrastructure on licence 51, including a transportable site office.[7]

The Forfeiture Proceedings

[7] Forrest & Forrest Pty Ltd v Onslow Resources Ltd [2014] WAMW 17 [3] - [6]; GB 100.

On 22 August 2013, Forrest applied for the forfeiture of Onslow's licence 51. The application was made pursuant to s 96(1)(b) read with s 96(2)(b) of the Act for non‑compliance by Onslow with conditions of the licence in stockpiling material and placing infrastructure on the area of licence 51.[8] In these reasons, the proceedings concerning Forrest's application for forfeiture of licence 51 are referred to as the 'Forfeiture Proceedings'.
[8] Primary decision [3].
The Forfeiture Proceedings were heard by Warden Tavener on 16 and 17 June 2014.
On 31 July 2014, Warden Tavener ordered that licence 51 be forfeited by reason of Onslow's breaches of conditions of licence 51 in relation to stockpiling material and placing infrastructure on the ground the subject of licence 51: Forrest & Forrest Pty Ltd v Onslow Resources Ltd[9] (the Forfeiture Decision). Warden Tavener said:[10]
In deciding the appropriate penalty, it is necessary to have regard to the seriousness of the breach such that the penalty is commensurate with the breach. There was a continuing breach, only recently mitigated, which could have been simply resolved by Onslow amending the terms of the licence. Onslow submitted its mining proposal to satisfy the application requirements, rather than acknowledging its compliance obligations.
Mr Slater's evidence was to the effect [that Onslow] had complied with the application process; after receiving approval, effectively, he was under no obligation to comply if costs were to be incurred.
There is a fundamental need to maintain the integrity of the application process; an applicant must abide by the conditions of the lease or seek to amend those conditions.
Onslow is engaged in a commercial enterprise on land owned by the State; it cannot disregard the conditions of the lease, which were consistent with its own application, and then seek a financial penalty as a retrospectively-applied cost.
It is understood the consequence of the licence being forfeited may be the cessation of a mining operation, pending an application for another miscellaneous licence by Onslow or another entity.
This is a serious breach following [Onslow] ignoring its obligation to comply with the conditions of its lease.

The Renewal Proceedings

[9] Forrest & Forrest Pty Ltd v Onslow Resources Ltd [2014] WAMW 17; primary decision [3].

[10] Forrest & Forrest Pty Ltd v Onslow Resources Ltd [2014] WAMW 17 [68] ‑ [73]; GB 109.

On the same day as the Forfeiture Decision, 31 July 2014, Onslow applied for, in effect, a replacement licence, Miscellaneous Licence L08/143 (licence 143), over the same ground as forfeited licence 51. On 8 August 2014, Onslow also applied for the cancellation of the forfeiture of licence 51.[11] In these reasons, Onslow's application for a replacement licence and/or the cancellation of the forfeiture of licence 51 are referred to as the 'Renewal Proceedings'.
[11] Primary decision [4].
Onslow did not fully rehabilitate the land the subject of licence 51 after its forfeiture, pending the determination of the Renewal Proceedings.[12]
[12] Primary decision [32]; Onslow Resources Ltd v Forrest & Forrest Pty Ltd [2015] WAMW 8B [28].
The Renewal Proceedings were heard by Warden Maughan on 28 July and 19 October 2015. The evidence in the Renewal Proceedings included two affidavits from Mr Slater, who also gave oral evidence, and an affidavit from Onslow's solicitor.[13] The affidavit of Onslow's solicitor annexed a letter dated 14 July 2015 to the Department of Mines and Petroleum (the Department) forwarding a statement provided pursuant to reg 37(3) of the Mining Regulations 1981 (WA) which Onslow sought to substitute for an earlier statement that it had provided.[14] Regulation 37(3) provides that within 35 days of the application for a miscellaneous licence, the applicant is to lodge written details of any work to be constructed in connection with the licence, the proposed manner of construction of the works, and any operations to be carried out on the land the subject of the application.[15]
[13] Primary decision [30].
[14] Primary decision [35].
[15] Primary decision [21].
The evidence in the Renewal Proceedings also included the evidence and submissions in the Forfeiture Proceedings.[16] Mr Slater's evidence in the Renewal Proceedings included evidence to the following effect:[17]
[16] Primary decision [30].
[17] Primary decision [31] - [34].
1.Licence 51 provided the only means of access to the Mining Lease.
2.The forfeiture of licence 51 had meant that there was no ready means of vehicular access to the Mining Lease and that no mining rehabilitation activities could be carried out on the Mining Lease.
3.Onslow had a substantial amount of material mined from the Mining Lease which it needed to form a hardstand on a general purpose lease held by a related company.
4.Onslow needed access via licence 51 to rehabilitate the Mining Lease in due course.
5.Onslow also wished to continue mining sand and shingle from the Mining Lease in the meantime.
6.He accepted that following forfeiture of licence 51 Onslow had an obligation to rehabilitate the land the subject of licence 51.
7.Whilst some rehabilitation work had been done, the roadway remained largely intact.
8.Mr Slater's said that it would 'seem senseless' to remove the roadway when Onslow was applying for, in effect, a replacement miscellaneous licence to use the roadway.
9.Onslow had not removed the stockpiled material from the Mining Lease after the application for forfeiture of licence 51 because it did not have sales for those materials.
10.An employee of Onslow had corresponded with Forrest in relation to rehabilitation, but when Forrest had required details of the works to be undertaken, Mr Slater had told his employees not to continue the discussions.
11.Onslow had access to the Mining Lease through other tenements, but it would be uneconomic to use this access as that would require the construction of a 25 km road.

The Renewal Decision

On 6 November 2015, Warden Maughan delivered his decision refusing Onslow's application for cancellation of the forfeiture of licence 51, and refusing its application for a replacement licence, licence 143: Onslow Resources Ltd v Forrest & Forrest Pty Ltd[18] (the Renewal Decision).
[18] Onslow Resources Ltd v Forrest & Forrest Pty Ltd [2015] WAMW 8B; primary decision [6].
In the Renewal Decision, Warden Maughan found, in effect, that there was no material change in the circumstances since Warden Tavener's Forfeiture Decision, and that there were no special circumstances warranting the reinstatement of the forfeited licence 51.[19]
[19] Primary decision [36] ‑ [37]. Onslow Resources Ltd v Forrest & Forrest Pty Ltd [2015] WAMW 8B [39] ‑ [40].
The primary judge made the following observations with respect to Warden Maughan's Renewal Decision in relation to the refusal to grant a replacement miscellaneous licence, licence 143:[20]
[20] Primary decision [38] - [43].
Warden Maughan referred to [Forrest's] submissions that on public interest grounds it was not appropriate to grant a new miscellaneous licence to [Onslow] when [Onslow] had not complied with its obligations under [licence 51]. He said that he was not satisfied that significant remediation of the forfeited miscellaneous licence had been carried out and that he had some sympathy for [Onslow's] position as it seemed nonsensical for the company to be required to remediate a roadway when there was a pending application for a license which would require the construction of an identical roadway.
He said the sympathy must be tempered by the obligation to rehabilitate a forfeited mining tenement contained in s 114B of the Mining Act. The Warden quoted Warden Tavener's finding in [the Forfeiture Decision] as to Mr Slater's belief as to his obligation to comply with the Mining Act:
'Warden Tavener found in forfeiture proceedings that Mr Slater's belief, when it came to complying with his obligations under the Mining Act was:
Effectively, he was under no obligation to comply if costs were to be incurred [46].'
Warden Maughan then said:
'That theme continued through Mr Slater's evidence before me and I have little confidence, and with respect I could not see how the Minister could be confident, that Onslow's attitude towards compliance with its obligations would ameliorate if the miscellaneous licence was granted [47].'
Warden Maughan then referred to [Onslow's] submission that any public interest considerations could be referred to the Minister pursuant to s 111A of the Mining Act which enables the Minister by notice to terminate an application for a mining tenement on public interest grounds. The Warden rejected that submission[.] …
The Warden then considered the requirements of reg 37(3) of the Mining Regulations that the applicant lodge written details of any works to be constructed in connection with the licence, the proposed manner of construction of those works and any operations to be carried out on the land the subject of the application. The statement under reg 37(3) annexed to the application for the tenement provided details of a road to be constructed. [Onslow] sought to substitute for that statement another reg 37(3) statement annexed to an affidavit of [Onslow's] solicitor. That proposed substituted statement provided that the proposed work in connection with the licence was the existing road on [licence 51]. … He decided that he would not allow the proposed reg 37(3) statement to be substituted because it did not comply with the regulation as it focussed on completed works (namely the existing road) and not contemplated works (as there was no evidence that [Onslow] proposed to build a new road).
Warden Maughan concluded:
'Faced with a now non-compliant reg 37(3) statement (originally filed) or alternatively a lack of evidence to support that statement in the proceedings, the application for the Miscellaneous Licence, is in my view, fatally flawed. …
I am satisfied the application for a miscellaneous licence is fatally flawed and in any event I am not satisfied that the Applicant would comply with any condition imposed on such a licence.'
(emphasis added)

The appeal to the Minister

The Minister was provided with written submissions by Onslow dated 17 and 19 November 2015, and by Forrest's solicitors (Mizen) dated 9 December 2015 and 4 February 2016. Details of the submissions are referred to later in these reasons at [132] ‑ [144].
By a briefing note dated 21 March 2016, the Department submitted Onslow's appeal to the Minister for determination. The briefing note contained a summary of the submissions that the Department had received and comment on those submissions. It also attached copies of the parties' written submissions to the Minister, with attachments. The Minister did not have before him a copy of the Renewal Decision or the evidence or material before Warden Maughan, other than the enclosures with Mizen's letters to the Department.[21]
[21] Primary decision [13].
The briefing note recommended that the Minister select one of the two following options:[22]
Option 1 - determine to dismiss the Appeal by Onslow …;
Option 2 - determine to uphold the Appeal by Onslow … and indicate your intention to grant [licence 143] subject to the application satisfying the future act requirements of the Native Title Act 1993 (Cth).
[22] Primary decision [14].

The briefing note contained the following:[23]
[23] Primary decision [63].
Regulation 37(3) of the Mining Regulations 1981 provides:-
Within 35 days of the date of application for a miscellaneous licence, the applicant shall lodge written details of -
(a)Any works to be constructed in connection with the licence; and
(b)The proposed manner of construction of such works; and
(c)Any operations to be carried out on the land, the subject of the application.
It is not uncommon for a report supporting an application to be deficient and require additional information. Pursuant to section 92, read in conjunction with section 31(3), the Mining Registrar has the authority to request further information or evidence to support the application. If however the application is subject to an objection, the additional information would be requested and the objector would be given an opportunity to comment if it believed that the acceptance of the additional information would jeopardise their objection.
Onslow lodged an amended regulation 37(3) statement however the Warden was of the view that he had no power to grant leave to accept it.
The Mining Act provides penalties for breaching covenants and conditions, and under normal circumstances the forfeiture of a tenement is the ultimate penalty. Onslow received the ultimate penalty with the forfeiture of [licence 51], which sterilised its substantial material stockpiles. However, given the lead up time from application for forfeiture to forfeiture it is difficult to understand why Onslow did not remove the material if it was needed to fill existing contracts.
Following forfeiture of [licence 51] Onslow did not remediate the road constructed on the licence however in its view for good reason, [licence 143] was applied for the same purpose. Onslow should have sought guidance from [the Department] to address its environmental rehabilitation requirements.
Onslow cannot lawfully transport its product from the mine site across Crown land without the appropriate licence, in its circumstance being the miscellaneous licence. [The Department] is responsible for ensuring conditions imposed on title are adhered to.

The allowance of Onslow's appeal by the Minister

On 29 March 2016, the Minister endorsed the briefing note that he approved option 2. By letter dated 5 April 2016, the Department informed Mizen that the Minister had upheld Onslow's appeal.[24]
[24] Primary decision [15].

Forrest's application for judicial review before the primary judge

The primary judge observed:[25]
[25] Primary decision [16] - [17].
There are two grounds of [Forrest's] application for judicial review. Ground 1 is that in upholding the appeal from the Warden without having before him the decision of the Warden and/or the materials from the proceedings before the Warden the Minister:
'(a)committed a jurisdictional error by purporting to exercise the appeal jurisdiction, failing to inquire as to the materials necessary to determine an appeal and/or failing to take into account relevant considerations;
(b)further or alternatively, made an error of law on the face of the record as to the requirements of an appeal under section 94(3) of the Act; and/or
(c)further or alternatively, denied [Forrest] procedural fairness by considering and determining an appeal other than in an obvious and natural way, without so notifying [Forrest] or affording it an opportunity to be heard as to the absence of the decision or materials before him.'
Ground 2 is that the Minister made a jurisdictional error in upholding the appeal as the decision to do so was an irrational exercise of the power conferred by s 94(4) of the Act as:
'(a)a miscellaneous licence is to be granted subject to conditions and the scheme of the Act is to compel compliance with those conditions by numerous means;
(b)pursuant to section 96 of the Act, Warden Tavener had ordered forfeiture of former [licence 51] for breaches of tenement conditions by [Onslow];
(c)in making his decision to refuse the application for [licence 143] (which was identical to, and intended to replace, the former [licence 51]), and after a contested hearing of an objection by the applicant with evidence from the applicant and [Onslow], a different Warden (Warden Maughan) made findings in his reasons that [Onslow]:
(i)had not in the past complied with conditions imposed on mining tenements held by it;
(ii)was not likely to comply with conditions imposed on the subject mining tenement;
(d)conditions imposed under section 46A (with 92), 94(1) and 94(2) of the Act and statutory conditions in regulation 41 of the Mining Regulations 1981 serve important protective purposes;
(e)the [Minister] undertook no inquiry to identify a basis to depart from the Warden's finding that [Onslow] was not likely to comply with conditions on the proposed miscellaneous licence;
(f)the implied statutory intention of section 94(4) is that the power to uphold an appeal against the refusal of an application for a miscellaneous licence be exercised reasonably;
(g)accordingly, the decision of the [Minister] lacked an evident and intelligible justification, as the statutory mechanism for a hearing and the requirement of a decision from the Warden, with reasons, had shown that the protective purposes of the conditions to be imposed on the proposed [licence 143], as contemplated by the legislation, would not likely be achieved or would be frustrated.'

The primary decision

As to the nature of the appeal to the Minister, the primary judge said:[26]
As ultimate decision-making power under the Act rests largely with the Minister, the powers given to a warden are administrative in character and s 94(4) provides that in determining the appeal the Minister may dismiss the appeal or allow the appeal and grant the application on such conditions as the Minister considers reasonable I consider that the appeal provided for by s 94(3) is an appeal de novo where the Minister determines the application afresh, may consider it on fresh material and may overturn the decision appealed from regardless of error. (emphasis added)
[26] Primary decision [71].
In relation to grounds 1(a) and (b), the primary judge said:[27]
Senior counsel for … Forrest was critical of the briefing note for not containing any analysis of the issues. However in my view whether or not the briefing note contained analysis is not of relevance. The issue is whether the Minister had regard to the findings of the Warden and the evidence before the Warden on matters that were relevant to the appeal. The Minister did have material before him that enabled him to give consideration to those matters. It was provided in the detailed submissions to the Minister contained in … Mizen's letters of 9 December 2015 and 4 February 2016. Forrest … has not demonstrated that he did not have regard to it.
Forrest … has not established grounds 1(a) or 1(b). It has not established that the Minister did not have before him or did not take into account relevant findings of the Warden or relevant material that was before the Warden. (emphasis added)
[27] Primary decision [86] - [87].
In relation to ground 1(c), the primary judge found as follows.[28]
[28] Primary decision [93] - [97].
Forrest was aware of the nature and purpose of the Minister's consideration of Onslow's appeal. It was provided with Onslow's letters of 17 and 19 November 2015. It was able to respond to that case, as it did by its letters of 9 December 2015 and 4 February 2016. Although the Minister could have obtained a copy of the Renewal Decision and of the evidence before the warden, the fact that he chose not to do so and did not inform Forrest that he was not doing so, does not mean that Forrest was not put on notice as to the nature and purpose of the appeal, the issues to be considered and the nature and content of information that the Minister might take into account. Forrest was aware of these matters. It made submissions as to why the appeal should not be allowed. The fact that the Minister did not have a copy of the warden's reasons or the evidence before the warden, and did not inform Forrest that he did not have this material, did not constitute a failure to afford Forrest procedural fairness, even though Forrest thought that the Minister did have that material before him. That is because Forrest still knew the nature and purpose of the appeal, the issues to be considered and the nature and content of the information that the Minister might take into account because it knew the case put forward by Onslow as to why the appeal should be allowed. Nor did the obligation to afford procedural fairness require the Minister to provide a copy of the briefing note to Forrest. The briefing note was a summary of the submissions of Onslow and Forrest, with some comment. It did not raise any basis for allowing Onslow's appeal which Forrest had not had the opportunity of addressing.
Contrary to Forrest's submissions, the briefing note did not lack balance or distort the issues. The briefing note contained a summary of the issues. The Minister had before him the parties' submissions. The reasons for forfeiture appeared in the material.
In summary, the Minister did not fail to afford Forrest procedural fairness.
In relation to ground 2, the primary judge said:[29]
As I have noted earlier in these reasons the primary object of the Mining Act is to encourage, promote and regulate the exploration for and mining of mineral deposits in the State. This object is sought to be carried out by making available tenements subject to reasonably stringent conditions.
It follows that [Onslow's] failure to comply with conditions in the past and the findings of Warden Tavener and Warden Maughan to which … Forrest has referred were relevant considerations in determining the appeal. These were matters that Forrest … placed before the Minister in the submissions made by … Mizen. However the Minister was also entitled to have regard to [Onslow's] acknowledgement that it had committed those breaches, its apology for them and its assurance that it would comply with conditions in the future. In my view there was an intelligible justification for the Minister's decision to give Onslow … an opportunity to obtain the miscellaneous licence it was seeking and to comply with the conditions to be imposed on it. The decision of the Minister was not invalid by reason of legal unreasonableness.
[29] Primary decision [102] - [103].

The appeal to this court

Forrest filed grounds of appeal to the following effect:
1.The judge erred in law in finding[30] that the appeal provided for by s 94(3) of the Act was an appeal de novo, when he ought to have held that it was an appeal by way of rehearing on the evidence before the warden, supplemented by such further evidence as the Minister sees fit.
2.The judge erred in law in failing to find[31] that it was necessary for the exercise of the power under s 94(3) of the Act for the Minister to have before him in the appeal the warden's reasons and the materials before the warden.
3.The judge erred in law by failing to deal with a ground of the judicial review application, namely that the Minister had a duty to enquire as to the materials necessary to determine the appeal, namely the warden's reasons and the materials before the warden. The judge ought to have found that the Minister had a duty to enquire as to such materials, and that the Minister had failed to discharge that duty.
4.The judge erred in law in finding[32] that the failure of the Minister to advise the parties that he did not have before him the warden's reasons and materials did not amount to a denial of procedural fairness, and the judge ought to have found that those matters gave rise to a denial of procedural fairness.
5.The judge erred in finding[33] that the Minister's decision was not invalid by reason of legal unreasonableness, and ought to have found that the Minister's decision was invalid on that ground.
[30] Primary decision [71].
[31] Primary decision [87], and also with reference to [76] and [80].
[32] Primary decision [94].
[33] Primary decision [103].
At the hearing of the appeal, Forrest foreshadowed an application to amend. The application is referred to in [109] ‑ [126] below.

The parties' arguments

In opposition to the appeal, Onslow effectively relies on the findings and reasoning of the primary judge. Forrest's submissions are to the following effect.

Grounds 1 and 2

Forrest contends that, on a proper construction of the Act, the nature of an appeal to the Minister under s 94(3) 'is an appeal by way of rehearing based upon the materials from the hearing before the Warden and the reasons for that decision supplemented by such further material as the Minister sees fit'. Forrest contends that, at the time of the Minister's decision, the Minister had to have before him, either in hard copy or electronically, the Renewal Decision, the Forfeiture Decision, all the exhibits and other evidence in the Renewal Proceedings, including all the evidence and submissions in the Forfeiture Proceedings, and all the submissions in the Renewal Proceedings.[34]
[34] Appeal ts 23, 34.
Forrest relies on the decision of Re Minister for Mines, Fuel & Energy; Ex parte Trythall.[35]
[35] Re Minister for Mines, Fuel & Energy; Ex parte Trythall (1991) 7 WAR 375; written submissions, pars 2 ‑ 3, 7 - 15; appeal ts 3.
Forrest also contends that the following matters point to the conclusion that an appeal against a decision to refuse a miscellaneous licence under s 94(3) ‑ s 94(4) is a rehearing of the application based upon the material before the warden (with any further material admitted by the Minister), and any reasons of the warden:[36]
1.The legislation contemplates that there will be written reasons from the warden, the warden conducts a hearing of any objection, the warden must keep a written record of the evidence before him and reduce to writing the reasons for that decision: reg 163(1) and (3). The materials kept under reg 163 are, hence, available to the parties and available to the Minister in the event of an appeal under s 94(3).
2.A principal contextual consideration is that a procedure is expressly laid out in s 42 and s 92 for a Mining Registrar to review compliance and refuse a tenement if not satisfied of compliance (s 42(2)(b) and s 92), and for a warden to hear the application and consider objections (s 42(3) and s 92). The outcome of that procedure 'is not to be ignored' when it is the 'gateway' to the Minister's decision‑making power under s 94(3) ‑ s 94(4). Within that legislative context, it is unlikely to have been intended that the Minister may 'ignore all of that work of the decision‑makers below'.
3.An appeal procedure in s 94(3) - s 94(4) may not ignore the entirety of the statutory requirements for a miscellaneous licence application. This is made clear by a number of provisions where the Minister is bound to operate within the confines of the Act. In particular, s 91(6) provides that the purpose for which a miscellaneous licence is granted must be directly connected with mining, and s 120(1) requires the Minister to consider planning schemes.[37] Because of such limitations, the Minister's reconsideration of the application is assisted by having regard to the materials before the warden and the warden's reasons for decision.
4.The right to appeal in s 94(3) requires satisfaction that a decision of a mining registrar or warden has been made to enliven the appeal jurisdiction. The Minister will need to be satisfied that there has been a refusal of a miscellaneous licence or grant on conditions thought unreasonable, before he or she can make a decision under s 94(4). The place to find that refusal, or those conditions, will be the reasons dealing with the application.
5.Section 94(3) provides that the right to appeal is 'against such refusal or conditions'.[38] The language thereby used 'is not a simplistic and unrestrained conferral of jurisdiction without reference to what has come before'. The appeal must centre upon the decision to refuse or impose conditions thought to be unreasonable by the applicant. It necessarily requires the Minister to focus upon that refusal 'as arises from the materials and reasons for decision below, which both conditions the right to appeal and is specified as the subject matter of that appeal'.
6.The reference to 'such further information' in reg 91(2) indicates that the Minister ought to already have before him information to determine the appeal, but if a person being heard wishes to raise fresh material, then reg 91(2) also permits the Minister to call for or receive it.
[36] Written submissions, pars 17 - 25.
[37] Section 120(1) of the Act provides: 'In considering any application for the grant of a mining tenement the Minister, warden or mining registrar, as the case requires, shall take into account the provisions of any planning scheme in force under the Planning and Development Act 2005 affecting the use of the land concerned, but the provisions of any such scheme shall not operate to prohibit or affect the granting of a mining tenement or the carrying out of any mining operations authorised by this Act.'
[38] Forrest's emphasis.
Forrest also submits:[39]
27In the present case, the Minister had before him neither the materials before the Warden or the reasons. This included numerous affidavits and transcripts of evidence including cross examination … [H]e constructively failed to exercise his appellate jurisdiction as contemplated by statute. It is also clear that the Minister sought no further information as he was entitled under reg 91(2).
28The Minister had before him a Briefing Note which had attached to it the letter submissions of the parties. The letter submissions were written on the assumption that the Minister was in possession of the reasons and the materials before the Warden. The Minister failed to comprehend the true nature of his task and the appeal jurisdiction as conferred. Accordingly … he [acted] outside the limits of his jurisdiction.

Ground 3

[39] Written submissions, pars 27 - 28.

Ground 3 alleges that the primary judge failed to deal with Forrest's ground of review to the effect that the Minister had a duty to enquire as to the materials necessary to determine the appeal, and that the judge ought to have found that the Minister had, and breached, such a duty.
In relation to the alleged duty to enquire, Forrest contends that the Minister should have 'inquired to obtain the reasons of the Warden and the materials before the Warden. Failure to do so was a constructive failure to exercise the appeal jurisdiction conferred upon the Minister'.[40] Reference is made to Minister for Immigration and Citizenship v SZIAI;[41] Helena Valley/Boya Association (Inc) v State Planning Commission[42] and Wei v Minister for Immigration and Border Protection.[43]
[40] Written submissions, par 29 (emphasis added).
[41] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 [20] ‑ [25].
[42] Helena Valley/Boya Association (Inc) v State Planning Commission (1989) 2 WAR 422, 445 ‑ 446.
[43] Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 [49] - [51].
Forrest refers to Warden Maughan's findings to the effect that Onslow had not, in the past, complied with tenement conditions and was not likely to comply with conditions imposed on it in the future. Forrest submits that the 'evidence which led to this important finding did not end up in the Briefing Note'.[44]
[44] Written submissions, pars 34 - 35.
Forrest submitted:[45]
37The Minister's discretion in s 94(4) was to be exercised by reference to the scope and purposes of the legislation … This necessarily included that conditions, forming an important part of how the Act regulates activities on tenements had not been complied with by [Onslow] and that [Onslow] was not likely to comply with conditions to be imposed on [licence 143] if granted by the Minister under s 94(4).
38The duty to inquire identified … in Helena Valley Boys Association (Inc), SZIAI and Wei was activated in the circumstances … The Minister was obliged to understand critical facts for the determination of the appeal. These included, at least, the nature of past breaches of conditions, the regularity of those breaches and the attitude and manner of the controlling director of [Onslow] when giving evidence … It also included the evidence and argument before the Warden that [Onslow] did not have any contracts or arrangements with Chevron for the Wheatstone Project, which was necessary to consider against the contrary assertions in the correspondence to the Minister in the appeal.
39The obvious enquiry [the Minister] could have made of the Department or the Warden, or the parties, utilising his power under reg 94(2), was to seek the materials from before the Warden and the information was easily ascertainable … He failed to do so and committed a jurisdictional error. (emphasis added)
[45] Written submissions, pars 37 - 39.

Forrest further submitted that the circumstances of the case gave rise to a duty to enquire, on the part of the Minister, by calling for the materials to which we have referred. It submits that the circumstances giving rise to this duty were that:
1.the issues between the parties involved assertion and counter‑assertion; and
2.evaluation of the competing assertions required attention to the primary evidence and material.[46]
[46] Appeal ts 39, 40 - 41.
Insofar as ground 3 alleges a duty 'to obtain' or 'seek' the warden's reasons for decision and the materials before the Warden in the Renewal Proceedings, it is, in substance, an allegation that the Minister had a duty to obtain or have before him the Renewal Decision, the Forfeiture Decision, the evidence in the Renewal Proceedings, the submissions in the Renewal Proceedings, and all the evidence and submissions in the Forfeiture Proceedings. Although ground 3 is expressed as an alternative to grounds 1 and 2, at least in this respect ground 3 appears to return full circle to grounds 1 and 2.

Ground 4

In relation to ground 4, Forrest contends, in effect, that it was denied procedural fairness by not being informed by the Minister that he was conducting the appeal without the warden's reasons or the materials before the warden. It is said that the primary judge did not deal with Forrest's contention 'that the manner in which the Minister conducted the appeal (by having none of the materials before the Warden or the Warden's reasons) was not an ordinary and obvious course. That is, that the process by which the appeal was conducted was unfair' (original emphasis).[47]
[47] Written submissions, par 43.
Forrest contends that, however the appeal mechanism under s 94(3) is characterised, 'ordinary people' regard an appeal as 'a review of an earlier decision', and at no point did the Minister clarify the position or inform the parties that he would not be looking at the warden's reasons or the materials before the warden.[48]
[48] Written submissions, par 46.
Forrest contends that it was evident from the submissions to the Minister and the briefing note that there had been earlier multiple hearings at which detailed evidence and legal argument were presented. Forrest contends that it was also evident that two separate decision‑makers in the Forfeiture Decision and the Renewal Decision had found against Onslow on evidently serious bases, and that the points being made were important and serious.[49]
[49] Written submissions, par 47.
Forrest contends:[50]
48The injustice is that after comprehensive litigation … the appeal mechanism was exercised without reference to what evidence had actually been elicited in a contested hearing and what had actually been decided before, and that the parties were not informed that this was how the Minister was to determine the appeal. One example of the consequence is that the Minister did not see the actual answers of the director of [Onslow] to important questions in cross‑examination about … non‑compliance with the legislation.
49The Minister did not provide the parties with a copy of the Briefing Note. Provision of the Briefing Note would have alerted the parties that the Minister was intending to determine the appeal without the reasons [and] the materials that were before the Warden.
[50] Written submissions, pars 48 - 49.
Forrest contends that had the briefing note been made available, that might have allowed it to know the content of the information that might be taken into account as a reason for coming to an adverse decision. Reference is made to Minister for Immigration and Border Protection v SZSSJ[51] and Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd.[52]
[51] Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 [83].
[52] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591 ‑ 592.
It is alleged that the parties were not aware that there was a briefing note that:[53]
[53] Written submissions, par 50.
(a)did not inform the Minister of actual evidence of Mr Slater;
(b)did not address the actual evidence from cross‑examination and argument before Warden Maughan that:
(i)there was no evidence that forfeiture of licence 51 and refusal of the application for licence 143 actually delayed Chevron's Wheatstone Project;
(ii)no one from Chevron had given evidence to this effect; and
(iii)according to Mr Slater, another company (Boral), had the contract with Chevron, but Onslow presented no evidence from Boral, and no evidence that the Mining Lease was Boral's only source of sand in the Pilbara (Forrest also submits that such a contention, if it were made, would be 'incredible');
(c)did not subject Mr Slater's assertions about public interest to any analysis or comparison;
(d)did not properly address the reg 37(3) issue; and
(e)did not properly address the assertion by Onslow that the Mining Lease was 'landlocked', and the actual evidence led before the warden that Onslow had ignored other options for access.

Ground 5

As to ground 5, Forrest submits that the judge refused the application for judicial review on the basis that the Minister's intended decision was not irrational because the Minister had an intelligible justification to grant licence 143, namely that Onslow had acknowledged it breached the tenement conditions, and had apologised and given an assurance that it would comply in the future. It is said that this was not an evident and intelligible justification for the Minister's intended decision in the circumstances. Reference is made to Minister for Immigration and Citizenship v Li.[54]
[54] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [76]; written submissions, pars 52 - 53; appeal ts 46.
Forrest notes that Warden Maughan had found that Onslow was unlikely to comply with conditions imposed on licence 143. Forrest submits, in effect, that that was a matter which was significant and relevant to the scope and purpose of the legislation, as explained in Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd.[55]
[55] Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [70]; written submissions, pars 54 - 55.
Forrest contends that the Minister did not utilise his power under reg 91(2) 'to call for further materials':[56]
(a)to understand the nature of the breaches and consider whether he should depart from the decision of the warden;
(b)about the nature of the 'assurance' that Onslow was giving and why this could now provide any more comfort so as to justify a departure from the warden's reasoned finding after the warden had heard the evidence; and
(c)about how further breaches may be prevented in the future, including by reference to supplementary reporting conditions on the tenement (s 92, read with s 46A(2)(b)), the use of third party mining engineers or environmental contractors, or the provision of any further security bond (s 126).
[56] Written submissions, par 56.
Forrest also submits that, having regard to the scope and purpose of the legislation, it was irrational to determine an appeal under s 94(3) - s 94(4) without having the benefit of the reasons for the original decision appealed from, or the materials that led to it. That, Forrest submits, is underscored by a failure to exercise the power in reg 91(2) to 'call for [the] materials'.[57]
[57] Written submissions, par 57.
The 'materials' which Forrest contends the Minister should have called for are, in substance, the Renewal Decision, the Forfeiture Decision, the evidence in the Renewal Proceedings, the submissions in the Renewal Proceedings, and all the evidence and submissions in the Forfeiture Proceedings.[58] Again, at least in this respect, the convergence with grounds 1 and 2 is apparent.
[58] Appeal ts 23.

Appeals - general observations

The fundamental contention of Forrest in relation to grounds 1 and 2 of the appeal is that the judge misconstrued s 94 of the Act when he held that the nature of the appeal to the Minister under s 94(3) was an appeal 'de novo'. Forrest contends that his Honour should have found that the appeal is by way of 'rehearing'. Before dealing specifically with the terms of the Act and the grounds of appeal, it is convenient to outline a number of general observations about that nomenclature, and the ways in which the courts have approached the characterisation of appeals.
Appeals are creatures of statute: Eastman v The Queen.[59] An appeal is a remedy given by statute, and the nature of an appeal is to be determined on the proper construction of the statute in question: Re Coldham; Ex parte Brideson [No 2];[60] Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd;[61] Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission;[62] CDJ v VAJ;[63] Lacey v Attorney‑General for the State of Queensland[64] and Traut v Faustmann Bros Pty Ltd.[65]
[59] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [14].
[60] Re Coldham; Ex parte Brideson [No 2] [1990] HCA 36; (1990) 170 CLR 267, 273 ‑ 274.
[61] Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616, 619, 621 ‑ 622.
[62] Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [11].
[63] CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 [95].
[64] Lacey v Attorney‑General for the State of Queensland [2011] HCA 10; (2011) 242 CLR 573 [56].
[65] Traut v Faustmann Bros Pty Ltd [1983] FCA 137; (1983) 48 ALR 313, 316 , 322 - 323.
Although the nature of an appeal is always a question of the proper construction of the relevant statute, the statutory schemes for appeals often lend themselves to characterisation in certain ways, including appeals in the strict sense, appeals by way of rehearing, and appeals involving a hearing de novo: Lacey.[66] Whilst it is impermissible to treat each category as necessarily having 'immutable characteristics or inflexible boundaries',[67] the following general observations may be made.
[66] Lacey [57].
[67] Traut (322).
An appeal in the strict (or proper) sense of the term gives the appellate body jurisdiction to determine whether or not the original decision was or was not erroneous on the evidence and the law as it stood at the time of the original decision: Allesch v Maunz[68] and Lacey.[69] The appellate body may only give the decision which should have been given by the original decision‑maker at first instance on the evidence before him or her: Allesch;[70] Coal & Allied[71] and Re Coldham.[72] In broad terms, it involves an historical exercise in the detection of error. It does not involve a 'rehearing' in the sense of hearing and determining the matter over again on the facts and in accordance with the law as it exists at the date of the appeal: CDJ;[73] Sperway;[74] The Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan[75] and Lacey.[76] In Mickelberg v The Queen,[77] Mason CJ observed:
[A]n appellate court, in hearing an appeal in the proper sense of the term, is called upon to redress error on the part of the court below. In deciding whether there was error, the appellate court looks to the materials which were before the court below.
[68] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [22].
[69] Lacey [57.1].
[70] Allesch [23].
[71] Coal & Allied [12].
[72] Re Coldham (271).
[73] CDJ [111].
[74] Sperway (619 - 620).
[75] The Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73, 107.
[76] Lacey [57.3].
[77] Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 267.
If an appellate body is empowered to receive further evidence, beyond that before the original decision‑maker, and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually referred to as a 'rehearing': Coal & Allied.[78] Even in such a case, however, the powers of the appellate body have generally been construed on the basis that, absent some contrary legislative intention, they are to be exercised for the correction of error in the original decision, and not regardless of error at first instance: Coal & Allied[79] and Allesch.[80] The appellate function, as indicated earlier, strictly speaking involves the correction of error in the original decision, having regard to the materials upon which the original decision was based.[81] Accordingly, where an appeal is by way of rehearing, as opposed to an appeal in the strict sense, the appellate jurisdiction being exercised is generally neither purely original nor purely appellate: CDJ[82] and Eastman.[83] Also, at least where there is an appeal by way of rehearing from one court to another, the appeal generally involves the rehearing of the cause at the date of the appeal on the evidence used in the court below, subject to the power to receive further evidence: Sperway;[84] CDJ;[85] Coal & Allied;[86] Traut.[87] It does not call for a fresh hearing, as does a hearing de novo: Coal & Allied;[88] Harris v Caladine;[89] Sperway.[90]
[78] Coal & Allied [13].
[79] Coal & Allied [14].
[80] Allesch [23].
[81] See Mickelberg (267), (298); Eastman [18], [68], [104], [184]; Werribee Council v Kerr [1928] HCA 41; (1928) 42 CLR 1, 21; Victorian Stevedoring (109). Even under the old Chancery practice, which permitted rehearing of Chancery decisions, prior to the commencement of the Judicature Act in England, a rehearing of an earlier decision involved the exercise of appellate, rather than original, jurisdiction: DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 [35].
[82] CDJ [111].
[83] Eastman [14], [106]. See also Mickelberg (298).
[84] Sperway (619 ‑ 620); Lacey [57].
[85] CDJ [111].
[86] Coal & Allied [13].
[87] Traut (319), (325).
[88] Coal & Allied [13].
[89] Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84, 125 (Dawson J), referred to in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 271.
[90] Sperway (620).
However, even where the legislative provision refers to the appeal as one by way of 'rehearing', the true nature of the appeal is to be discerned from the provision construed in the context of the legislative scheme as a whole, as the word 'rehearing' itself is capable of bearing different meanings according to the context in which it is used: Sperway;[91] Bradshaw v Medical Board of Western Australia[92] and R v Syme; Ex Parte Page.[93] For example, it has been said that, generally, where a right of appeal by way of 'rehearing' is given to a court, from a decision of an administrative authority, the court will undertake a hearing 'de novo': Sperway;[94] Traut[95] and cf Re Coldham.[96] On the other hand, where the administrative body itself is required to determine justiciable issues formulated in advance, to conduct a hearing at which the parties are represented and in which evidence under oath and subject to cross‑examination is given, to keep a transcript record, to apply the rules of evidence, and to give reasons for determination, a direction that any appeal from the administrative body is to be by way of 'rehearing' may well assume a different significance: Sperway.[97]
[91] Sperway (620 ‑ 622).
[92] Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322, 325 - 326.
[93] R v Syme; Ex parte Page [1970] WAR 153, 155 - 156.
[94] Sperway (621).
[95] Traut (316 ‑ 317), (323).
[96] cf Re Coldham (273).
[97] Sperway (621).
In Fleming v The Queen,[98] the High Court observed:
The phrase 'by way of rehearing' has been used to identify various characteristics of the appellate process and does not necessarily have a fixed or settled meaning. It is best used only when required by a statutory text. The phrase is not found in the legislation with which this appeal is concerned and does not immediately assist as a criterion of differentiation in identifying the incidents of the appellate process for which the legislation does provide.
[98] Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 [21].
An appeal by way of hearing de novo involves a fresh hearing, and the appellate body may overturn the decision appealed from regardless of error: Sperway;[99] Harris;[100] Lacey[101] and Traut.[102] It is an exercise of original, not appellate, jurisdiction: Harris.[103] Where the statutory provision indicates that the appellate body is required to 'make such order as it thinks fit', this is an indication that the appellate body's powers are not constrained by the need to identify error on the part of the decision‑maker, but, rather, it is obliged to give its own decision on the evidence before it: Coal & Allied[104] and Re Ryan; Ex parte Travaglini.[105]
[99] Sperway (619 ‑ 622).
[100] Harris (125).
[101] Lacey [57].
[102] Traut (321 - 322).
[103] Harris (124).
[104] Coal & Allied [15]; see Re Coldham (272).
[105] Re Ryan; Ex parte Travaglini [1979] WAR 23, 26 - 27.
An appeal involving a hearing de novo is sometimes referred to as a 'rehearing de novo': Sperway[106] and Travaglini.[107] In Trythall,[108] Ipp J referred to a right of appeal under the Act as an appeal involving a review 'de novo as if the appeal were a rehearing'. As explained later in these reasons, this appears to be a reference to a hearing, or rehearing, de novo. In the same case, Murray J said that an appeal by way of rehearing 'may or may not call for a hearing de novo'.[109]
[106] Sperway (629).
[107] Travaglini (26), (27).
[108] Trythall (383).
[109] Trythall (392).
With those observations in mind, it is convenient to turn now to the Act and the statutory framework concerning appeals to the Minister under s 94 of the Act.

The Act and Appeals to the Minister under the Act

The broad scheme of the Act and its objects

In St Barbara Ltd v Minister for Energy, Resources, Industry & Enterprise,[110] Steytler P (Buss JA & Newnes AJA agreeing) outlined the general scheme of the Act in the following terms:[111]
1.The principal object of the Act is that of regulating access to and exploitation of the State's mining resources.
2.The Act is to be administered by the Minister: s 10(1). The Minister is assisted by a department of the Public Service of the State, encompassing a number of officers, including mining registrars: s 11. The appointment of persons holding office as magistrates as wardens of mines is provided for by s 13(1).
3.All land defined in s 8 as 'Crown land', but not the subject of a mining tenement, is open for mining: s 18. However, the Minister may, by an instrument in writing under his hand, exempt any land, not being private land or land that is the subject of a mining tenement or of an application therefor, from mining or from a specified mining purpose or from the Act or a specified provision of the Act: s 19(1)(a).
4.Part IV of the Act provides for the grant of mining tenements. These might take the form of prospecting licences (div 1), exploration licences (div 2), retention licences (div 2A), mining leases (div 3), general purpose leases (div 4) and miscellaneous licences (div 5).
5.Different regimes are provided for depending upon the nature of the mining tenement applied for.
6.In the case of an application for an exploration licence, a retention licence, a mining lease or a general purpose lease, the application comes first before a mining registrar (where there is no objection) or a mining warden (where there is an objection). The registrar or warden, as the case may be, makes a recommendation to the Minister, who decides the application: s 57(1), s 59(2), s 59(4) ‑ (6) (exploration licences); s 70B(1), s 70D(2), s 70D(4) ‑ (6) (retention licences); s 71, s 75(2), s 75(4) ‑ (6) (mining leases); s 86(1), s 86(4) (general purpose leases).
7.On the other hand, in relation to prospecting licences and miscellaneous licences, the decision is made by a mining registrar or warden (s 40(1), s 42, s 91(1), s 92), subject to a right of appeal to the Minister against a refusal or a grant on unreasonable conditions (s 56, s 94(3) ‑ (4)).
8.It is plain from the scheme of the Act that ultimate decision-making power rests largely with the Minister.
[110] St Barbara Ltd v Minister for Energy, Resources, Industry & Enterprise [2008] WASCA 248.
[111] St Barbara [22] ‑ [24], [26].

With reference to the objects of the Act, in Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd,[112] Buss JA observed (Wheeler & Pullin JJA agreeing):[113]
[T]he primary object of the Mining Act is to encourage and promote the prospecting and exploration for, and mining of, minerals deposits in the State. … [T]he primary object … is sought to be carried into effect by making available specific tenements for, relevantly, prospecting, exploration and mining, subject to reasonably stringent conditions, including conditions with respect to expenditure, the reporting of the discovery of minerals of economic interest, and the rehabilitation of the surface of land which is disturbed in the course of operations conducted under the tenement in question …
It is also an object of the Mining Act that, in general, the holder of a mining tenement should carry out prospecting, exploration or mining, as the case may be, on the relevant tenement. This is sought to be achieved by requiring the holder to comply with the prescribed expenditure requirements …
[112] Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403.
[113] Re Cazaly Iron [119] - [120].
His Honour also said:[114]
[114] Re Cazaly Iron [72].
Relevant matters of policy and principle include:
(a)the promotion of a strong and stable mining industry and economy generally;
(b)the reconciliation of exploration of mineral deposits with the protection and encouragement of competing land uses;
(c)environmental considerations; and
(d)any other matters that are in the public interest.
No doubt, in a particular case, some issues of policy and principle may conflict. It may be necessary for the Minister to reconcile competing issues or to accord precedence to one factor over another.

Miscellaneous licences

Part IV div 5 of the Act deals with miscellaneous licences. A miscellaneous licence may be granted for any one or more of the purposes prescribed: s 91(1). By reg 42B(a) of the Mining Regulations 1981 (WA) (Regulations), the prescribed purposes include a road. A miscellaneous licence shall not be granted unless the purpose for which it is granted is directly connected with mining: s 91(6). A miscellaneous licence has been described amongst the hierarchy of tenements as an 'ancillary tenement',[115] and 'of an ancillary character to facilitate mining operations'.[116]
[115] Re Trythall (381 - 382).
[116] Re Roberts; Ex parte Western Reefs Ltd v Eastern Goldfields Mining Company Pty Ltd (1990) 1 WAR 546, 550.
In general terms, a miscellaneous licence may be applied for and granted even in respect of land that is the subject of another mining tenement: s 91(7). Where the miscellaneous licence is granted in respect of land already subject to an existing mining tenement, the miscellaneous licence and the other tenement apply concurrently to that land: s 91(8) and s 94A(2).
In general terms, the application for a miscellaneous licence is to proceed and be determined in a manner similar to the application for a prospecting licence: s 91(1), s 92 read with s 41 and s 42 of the Act.
The application may be granted by the mining registrar if no notice of objection is lodged, or by the warden if there is an objection: s 91(1), s 92 read with s 42. The powers given to a warden under s 40, s 42, s 91 and s 92 of the Act are administrative in character.[117]
[117] St Barbara [27].
A miscellaneous licence will be subject to:
1.the conditions prescribed (s 94(1));
2.the conditions attaching to a prospecting licence, with such modifications as the circumstances require (s 92 read with s 46); and
3.any conditions imposed by the mining registrar or warden, as the case may be (s 94(2)), including conditions (with such modifications as the circumstances require) imposed pursuant to s 46A (s 92).
As noted below, conditions imposed under s 94(2) may be the subject of an appeal to the Minister.

Appeals to the Minister under the Act

The Act refers to a number of circumstances where an applicant may appeal to the Minister: s 32(2), s 56(1), s 56A(5), s 70(5) and s 94(3). In broad terms, a right of appeal is conferred in circumstances where an application is refused, or an application is granted on conditions which the applicant considers to be unreasonable. In such cases, in broad terms, the applicant may, within the time and in the manner prescribed, appeal to the Minister against such refusal or such conditions, and the Minister may dismiss the appeal or uphold the appeal and grant the application on such conditions as he or she considers reasonable.
These appeals apply in relation to applications for a permit to enter private land to search for minerals,[118] a prospecting licence,[119] a special prospecting licence,[120] and, relevantly, for present purposes, a miscellaneous licence.[121] In such cases, there is no appeal against the grant of the permit or licence in question.
[118] Section 32(2) of the Act.
[119] Section 56(1) of the Act.
[120] Section 56A and s 70(5) of the Act.
[121] Section 94(3) of the Act.
These procedures may be compared with those in relation to other tenements, such as exploration licences, retention licences and mining leases, which, as Steytler P in effect observed in St Barbara,[122] are directly under the grant of the Minister. Although the Minister may grant (or refuse) these other tenements 'as the Minister thinks fit', the Act provides for a system of reporting to the Minister prior to the Minister making the relevant decision. Where no objection has been lodged, the mining registrar must forward a report to the Minister with recommendations as to the grant or refusal of the tenement. Where an objection has been lodged, the warden must hear the application and forward to the Minister the notes of evidence, any maps or other documents referred to in the notes of evidence, and a report, with reasons, recommending the grant or refusal of the tenement: see s 59, s 70D and s 75 of the Act. None of those requirements is provided for in relation to appeals to the Minister under s 32(2), s 56(1), s 56A(5), s 70(5) and s 94(3).

An appeal under s 94 - miscellaneous licence

[122] See [64] above.

Section 94 is in the following terms:
(1)A miscellaneous licence is subject to the terms and conditions prescribed.
(2)In addition to the terms and conditions prescribed in relation to a miscellaneous licence, the mining registrar or the warden, as the case requires, may make a miscellaneous licence subject to such further terms and conditions as he thinks fit and specifies in that licence.
(3)Where the mining registrar or the warden refuses an application for a miscellaneous licence or grants the application on conditions the applicant considers unreasonable, the applicant may within the time and in the manner prescribed appeal to the Minister against such refusal or conditions as the case may be.
(4)The Minister may dismiss the appeal or uphold the appeal and grant the application on such conditions as he considers reasonable.
(emphasis added)
The relevant 'time and … manner prescribed', referred to in s 94(3), is found in reg 91 of the Regulations:
(1)An appeal referred to in section 32(2), 56(1), 56A(5), 70(5) or 94(3) of the Act shall be in the form of a submission in writing lodged within 14 days of the date of the grant or refusal, as the case requires, by a mining registrar or a warden of the application concerned. (emphasis added)
Also, reg 91(2) provides:
(2)The Minister may obtain such further information in writing from any other party to the matter and from any other sources as he sees fit to assist him in his determination of the appeal. (emphasis added)
The words 'the appeal' in reg 91(2) are a reference, relevantly for present purposes, to the appeal provided for under s 94(3) of the Act.
In St Barbara, Steytler P observed with respect to an appeal under s 94:[123]
[T]here is nothing in the Act which contemplates that the warden might reject an application by an unappealable decision. Rather, the Act plainly provides that the Minister is to have the final say in respect of any applications for miscellaneous licences that have been rejected by the warden. In addition, … s 111A gives the Minister an overriding power to intervene in respect of any application properly before the mining registrar or warden. As Ipp J remarked in Trythall (383), the scheme of the Act 'is plainly intended to allow the Minister a substantial degree of control over the granting of mining tenements' … [and] that this control is 'effected by conferring upon the Minister a very broad discretionary power over tenement grants, whether that discretion be exercised by way of grant following a recommendation of the Warden or on appeal from a decision of the Warden'.
[123] St Barbara [32].
It was common ground in this appeal that the exercise of the Minister's powers under the Act, including under s 94(4), is subject to the requirements of natural justice.

Grounds 1 and 2: disposition

Jurisdictional error

The concept of jurisdictional error was described in the following terms by Hayne J in Re Refugee Review Tribunal; Ex parte Aala:[124]
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
[124] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163].
This passage was quoted with approval by the plurality in Kirk v Industrial Court (NSW),[125] and applied by this court in Forrest & Forrest Pty Ltd v The Honourable Richard Marmion, Minister For Mines and Petroleum.[126] In that case, this court also observed:[127]
An assertion of jurisdictional error in relation to the exercise of a statutory power therefore involves a contention that the decision-maker has purportedly exercised his or her power otherwise than in accordance with the conditions for the valid exercise of the relevant power. The identification of those conditions which mark the limits of the decision‑maker's authority to decide is purely a matter of statutory construction. Those limits are to be identified by the application of common law and statutory rules of construction to the language which Parliament has chosen, understood in the context in which it appears.
[125] Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 [66].
[126] Forrest & Forrest Pty Ltd v The Honourable Richard Marmion, Minister For Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 (Forrest v Marmion) [86] - [87].
[127] Forrest v Marmion [92].
As to the relationship between jurisdictional error and administrative error or injustice, in Minister for Immigration and Border Protection v SZSSJ,[128] the High Court said:
[I]t is axiomatic that a court exercising its own curial jurisdiction to review administrative action on a ground of jurisdictional error - including a jurisdictional error constituted by a failure to exercise a statutory power in a manner that complies with an implied condition of procedural fairness - does not 'go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power'. That is not to say that the court must proceed in a normative vacuum; but it is to say that the court can proceed only for that purpose. 'If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.' (footnote omitted)

Grounds 1 and 2 - the nature of the appeal to the Minister

[128] Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 [81].

Grounds 1 and 2 should be dismissed. The appeal to the Minister under s 94 is not by way of a 'rehearing'. It is not a condition of the exercise of the powers of appeal under s 94(3) and s 94(4) that the Minister have before him or her, or have regard to, the warden's reasons for decision and the materials before the warden. The appeal under s 94 involves the Minister dealing with the matter afresh (or de novo). That is so for the following reasons:
1.There is no reference in the statutory language in s 94 to an appeal to the Minister being by way of 'rehearing'. Section 94(3), in this regard, may be contrasted with s 148(1) of the Act, which provides that an appeal to the Supreme Court pursuant to s 147 of the Act shall be 'by way of rehearing'.
2.Section 94 does not provide for a requirement that the Minister must have before him or her, or have regard to, the materials before the warden and the warden's reasons for decision (where there has been an objection),[129] or the materials before the mining registrar (where there has been no objection).
3.Nor does the Act make provision for the Minister to be provided with materials before the mining registrar or warden (as the case may be), or with the reasons of the warden, in connection with an appeal under s 94.
4.The structure of s 94(3) is that appeals may be brought not only against the refusal of an application for a miscellaneous licence, but also against the grant of a condition or conditions which the applicant considers to be unreasonable. This tends against a construction which makes it mandatory for the Minister to have before him or her the whole of the materials before the mining registrar or warden (as the case may be).
5.Forrest accepts,[130] correctly, that there is nothing in the Act which suggests that the 'appeal' under s 94(3) is conferred for the correction of factual or legal error in the mining registrar's or warden's decision. Section 94 does not specify any grounds of appeal. The Minister's powers in relation to an appeal do not include remitting the application for a miscellaneous licence to the mining registrar or warden (as the case may be). The Minister will not necessarily have any legal qualifications. Those matters also tend against Forrest's contention that, on the proper construction of s 94, the Minister is bound to have regard to the warden's reasons for decision and all the materials before the mining registrar or warden (as the case may be).
6.The express power in s 94(4) to 'dismiss the appeal or uphold the appeal and grant the application on such conditions as [the Minister] considers reasonable' is expressed in broad and unconditional language. This tends against an acceptance of the proposition that the exercise of the Minister's powers on an appeal under s 94(3) is conditioned upon the Minister having before him or her, or having regard to, the warden's reasons and the material before the warden, subject only to the exercise of a discretionary power to receive further evidence.
7.Whilst the exercise of the Minister's powers on appeal is constrained by the scope and purposes of the Act,[131] the powers under s 94(4) are evidently intended to be exercised in furtherance of the objects of the Act, in connection with which the Minister may take into account (as Forrest accepts)[132] the policies and principles referred to earlier. This also tends against an acceptance of the proposition that the Minister's powers are necessarily constrained by an obligation to have before him or her, or have regard to, the warden's reasons and the material before the warden.
8.In the end, Forrest accepted that the Minister was only obliged to have regard to such of the warden's reasons and material before the warden as the parties referred to in the parties' submissions to the Minister.[133] Nevertheless, Forrest submits that the Minister is obliged to have before him or her all the material before the warden.[134] There is no basis to imply, and no utility in implying, a requirement for the Minister to have before him or her all the material while only being obliged to have regard to such of it as is referred to in the parties' submissions.
[129] Regulation 163 contemplates the provision of reasons by the warden.
[130] Appeal ts 6.
[131] Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40.
[132] Appeal ts 14
[133] Appeal ts 17 - 18, 21.
[134] Appeal ts 17 - 18, 23.
Dealing in terms with the six matters identified by Forrest in support of its construction of s 94 (see [35] above):
1.Generally speaking, regulations cannot be used to construe, and thereby alter, the meaning of the provisions of the statute which created them.[135] There is no basis for concluding that reg 161 and reg 163, referred to by Forrest, fall outside this general rule. However, even if it were assumed that reg 161 and reg 163 could properly bear upon the proper construction of s 94, the availability of the record of evidence before the warden, and the warden's reasons, do not point decisively, or even significantly, in favour of Forrest's construction. They are consistent with the construction adopted by the primary judge to the effect that an appeal under s 94 proceeds by way of submissions to the Minister, with the applicant and the other party being afforded the opportunity to put before the Minister as much or as little of the primary materials before the warden, and the warden's reasons, and indeed any other materials, as they consider relevant.
2.The procedures laid out in s 42 and s 92 provide procedural fairness to the applicant and (where there is an objector) the objector. They do not provide a 'gateway' to the Minister if a miscellaneous licence is granted. Nor do they imply that the Minister may only open the 'gate' to the Warden's decision by reviewing all the materials before the Warden. Further, the contention that the materials before the Warden should 'not … be ignored' assumes rather than demonstrates the correctness of Forrest's proposition as to the proper construction of s 94. Moreover, the Minister would be bound to have regard to such materials to the extent that they were relevant and properly put before the Minister for consideration for the purposes of an appeal under s 94.[136]
3.It is not to the point that the Minister's consideration of the application would be 'assisted' by having regard to the warden's materials below, and any reasons for the warden's decision. The question is whether the Minister's power is conditioned, on the proper construction of s 94, by an obligation to have regard to such materials and reasons for decision.
4.There is no doubt that the Minister's powers under s 94(4) depend upon the commencement of an appeal within the meaning of s 94(3). That requires a refusal of an application for a miscellaneous licence by a mining registrar or warden, or the grant of an application on conditions which the applicant considers unreasonable. The existence or otherwise of those jurisdictional requirements is not expressed to be subject to the 'satisfaction' of the Minister. Nor do those requirements implicitly make the exercise of the Minister's powers under s 94(4) dependent upon receipt and consideration of the warden's reasons, and all the materials before the warden.
5.Forrest seems to seek to draw support for its construction by emphasising the reference to the words 'such refusal or conditions in the concluding line of s 94(3)'.[137] This point does not assist Forrest. The use of the word 'such', in the context of s 94(3) read as a whole, is a shorthand reference to the words '[w]here the mining registrar or the warden refuses an application for a miscellaneous licence or grants the application on conditions the applicant considers unreasonable' in the opening lines of s 94(3). The words emphasised by Forrest are not apt to convey a mandatory requirement that, before exercising his or her powers under s 94(4), the Minister must have at hand, and have regard to, all of the materials before the warden, and the warden's reasons for decision.
6.Regulation 91(2) does not assist Forrest for the reasons given below.
[135] Wallaby Grip Limited v QBE Insurance (Australia) Ltd [2010] HCA 9; (2010) 240 CLR 444 [27]; Plaintiff M47/2012 v Director‑General of Security [2012] HCA 46; (2012) 251 CLR 1 [56]; Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234, 244; cf O'Connell v Nixon [2007] VSCA 131; (2007) 16 VR 440 [26].
[136] Forrest v Marmion [103].
[137] Forrest's emphasis.

Although it is not entirely clear, it would appear that this other document is what Forrest refers to as the 'Restoration Submissions' in its submissions in support of the application to amend in terms of proposed ground 2A. This other affidavit of Mr Mizen also has annexures marked 'AFM40' and 'AFM41'.

Preliminary observations on proposed ground 2A

A number of preliminary observations may be made about proposed ground 2A. First, proposed ground 2A does not conform with, and is wider than, the ground in respect of which Forrest was given leave to make an application to amend.[165] Proposed ground 2A is not confined to the appellant's submissions, as provided for in the grant of leave. Paragraphs (a) - (d) of proposed ground 2A refer to 'submissions' more generally, and it is evident from the particulars to par (b) that Forrest contends that not only Forrest's submissions, but also Onslow's submissions, incorporated by reference material in the warden's decision and the proceedings before the warden which the Minister was bound to consider. That contention is also evident from par 10 of Forrest's written submissions filed 22 December 2017. Also, proposed ground 2A(d) is not confined to 'relevant' parts of the material not before the warden. Accordingly, Forrest's particulars to par (d) do not particularise 'relevant' parts of the material which were before the warden but not before the Minister, and 'relevant' parts of the warden's reasons which were not before the Minister. Rather, Forrest's particulars in par (d) merely indicate what material was before the Minister by way of submissions.
[165] Appeal ts 31 - 32.
Secondly, par (b) of proposed ground 2A refers to the material which is said to have been 'incorporated by reference' in the submissions made to the Minister. The material 'incorporated by reference' is referred to in (A) ‑ (F) in [113] above. It is to be noted that (B) is a subset of (C), and that (F) is a subset of (C).[166] Thus, the particulars to ground 2A(b) involve an assertion that the parties' submissions to the Minister incorporated, by reference, all of the evidence in the Renewal Proceedings (including all the evidence and submissions in the Forfeiture Proceedings), Forrest's submissions in the Renewal Proceedings referred to as 'Restoration Submissions', the Forfeiture Decision, and the Renewal Decision. Accordingly, it would appear that proposed ground 2A involves the general proposition that the parties' submissions to the Minister could not properly be understood without the Minister obtaining and having regard to those materials. Again, at least in this respect, proposed ground 2A appears to return full circle to grounds 1 and 2.
[166] All the evidence and submissions in the Forfeiture Proceedings were evidence in the Renewal Proceedings: primary decision [30].
Thirdly, it is difficult to find any clear statement as to what particular materials it is said that the Minister had to consider, other than, generally, all of the materials referred to above. Paragraph 10 of Forrest's written submissions filed 22 December 2017 involves an allegation that the Minister was required to consider and take into account 'at least', in addition to the Renewal Decision and the Forfeiture Decision, certain evidence and the absence of certain evidence in relation to the Wheatstone project, and the 'worth and weight' of Mr Slater's acknowledgement and undertaking, having regard to the evidence led and the findings made. But that paragraph does not specify which additional documents the Minister did not have on the topics which had not been supplied by the parties in their written submissions, or why the parties' submissions on those matters could not properly be understood without regard to such additional documents.
Fourthly, insofar as there is any indication in the written submissions as to what particular, additional, documents it is alleged the Minister should have 'looked at',[167] it appears that they are few in number. The particular documents mentioned in Forrest's written submissions of 22 December 2017 are principally:
1.One paragraph of Mr Slater's affidavit of 18 December 2014.[168]
2.Three pages of Forrest's 'Restoration Submissions'.[169]
3.Ten pages of transcript of Mr Slater's evidence in the Renewal Proceedings.[170]
[167] The language in pars 22 and 27 of Forrest's written submissions of 22 December 2017.
[168] Forrest's written submissions filed 22 December 2017, footnote 11.
[169] Forrest's written submissions filed 22 December 2017, footnotes, 15, 28, 34.
[170] Forrest's written submissions filed 22 December 2017, pars 19, 37 and footnotes 12, 13 and 29 ‑ 43.
Forrest also makes a submission to this court, although it is not evident that it was made to the Minister, that the Wheatstone project was not a point which Onslow had 'opened on' or 'closed on' in its written submissions to the warden.[171] Reference in that regard is made to pages 56 - 64 of Onslow's opening submissions in 'AFM40', and pages 65 - 72 of Onslow's closing submissions in 'AFM41'.
[171] Forrest's written submissions filed 22 December 2017, par 20, footnote 14.

Application for leave

The public interest in finality is a relevant consideration in this context.[172] Proposed ground 2A raises a new point that was not part of the application for judicial review before the primary judge. An application to raise a new point on appeal will only be permitted in exceptional circumstances.[173]
[172] McLennan v McCallum [2010] WASCA 45 [81], [87].
[173] Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91 [48] ‑ [53].
Proposed ground 2A is not in terms in respect of which leave was granted to make an application to amend. Also, Forrest's application for leave to amend emerged at a very late stage in the appeal. The application was only foreshadowed well into the course of oral argument at the hearing of the appeal. Further, Forrest must have been aware that this court did not have all of the material referred to in its written submissions which were filed in support of its (late) application to amend its grounds of appeal. The certificate that the appeal books contained the materials necessary for the appeal[174] could no longer be regarded as correct as from the date of the application for leave to amend. An applicant for leave in these circumstances ought to ensure that all of the material on which it relies in its submissions in support of the proposed new ground of appeal is properly before the court. An application should be made to supplement the Green Appeal Book, so that there is a proper and complete record of the appeal. Forrest has not done this.
[174] WB 39.
Although it does not appear that Onslow would likely suffer any specific prejudice if leave were granted, and the point sought to be raised appears to be a point of law, Forrest has nevertheless had ample opportunity to formulate and put its case at first instance and on the appeal.
In light of the matters referred to in the preceding three paragraphs, there are compelling grounds on which to conclude that it is not in the interests of justice in this case to grant the application for leave to amend in terms of proposed ground 2A. However, it is unnecessary to determine the application to amend on that basis.
For the reasons given below, proposed ground 2A has no merit in any event and, on that basis, leave should be refused.

The parties' submissions to the Minister

In considering the merits, it is necessary to commence with a consideration of the parties' submissions to the Minister in late 2015/early 2016.

Onslow's submissions to the Minister

Onslow's submissions to the Minister comprised its letter dated 17 November 2015 (two pages) and its letter dated 19 November 2015 (seven pages). In the submissions in its letter of 17 November 2015, Onslow submitted, in effect:[175]
1.The forfeiture of licence 51 was itself a harsh penalty, unprecedented in the history of the Act.
2.The absence of a roadway in to and out of its Mining Lease has meant that it cannot obtain sand which it requires to supply to Chevon's Wheatstone project. That sand was 'urgently needed' and would be needed for another 18 months. No other suitable sand was available.
3.The lack of access to the Mining Lease has landlocked all of Onslow's products, which have a value of approximately $2 million.
4.Onslow accepted that it had erred in stockpiling materials, and apologised for this.
[175] GB 46 - 47.
In the submissions in its letter dated 19 November 2015, Onslow submitted, in relation to the Renewal Decision:[176]
1.The warden erred in law in refusing its application for a replacement licence, licence 143, for non‑compliance with the reg 37 statement.
2.The warden took into account irrelevant considerations in that the warden determined, on the basis of past breaches by Onslow, that it would fail to comply with future conditions on the new miscellaneous licence, when Onslow had already received its penalty for past breaches which resulted in the forfeiture of licence 51.
3.In effect, the warden sought to impose a de facto further penalty on Onslow for its past conduct in a manner which is punitive in nature.
4.The public interest is in the development of mineral deposits, and the effect of the warden's decision has been to landlock the Mining Lease and thereby prevent the resource located on the tenement from being exploited, which is against the policy of the Act.

Forrest's opportunity to respond

[176] GB 48 - 54.

The Department, by letter dated 25 November 2015, informed Forrest that Onslow had appealed the warden's decision, and that Forrest was being given 'an opportunity to provide information that will be provided to the Minister … to assist him in his determination of the appeal … [A]ny information proposed to be submitted must be received … by 9 December 2015'.[177]
[177] GB 10.
Pursuant to that letter, Forrest provided its written submission by letter dated 9 December 2015. In that submission (referred to in detail below), Forrest asked for a copy of Onslow's appeal and any submissions in support, so that it could 'consider whether [it] needed to supplement that which appears in this letter [of 9 December 2015]'.[178]
[178] GB 11.
The Department, by letter dated 22 January 2016, provided to Forrest the submissions lodged by Onslow in support of the appeal. The Department informed Forrest that it had the opportunity to provide comment, limited to the content of Onslow's submissions, by 5 February 2016.[179]

Forrest's submission of 9 December 2015

[179] GB 45.

In its letter to the Minister dated 9 December 2015,[180] Forrest submitted that the Minister should take into account that Warden Maughan had reason to refuse the grant of a new miscellaneous licence to Onslow on the grounds of public interest. Forrest submitted that the grounds of public interest taken into account by Warden Maughan in the Renewal Decision were:
1.The warden's finding that Onslow failed to remediate the ground (including the roadway) after the forfeiture of licence 51 and pending its application to obtain replacement licence 143.
2.The warden had little confidence, and he could not see how the Minister could be confident, that Onslow would comply with its obligations if a new miscellaneous licence were granted with respect to the roadway, having regard to the 'theme' of Mr Slater's evidence in the Forfeiture Proceedings, which continued in the Renewal Proceedings, namely '[e]ffectively, [Mr Slater] was under no obligation to comply if costs were to be incurred'.[181]
3.Onslow's reg 37(3) statement originally filed was non‑compliant, and the proposed amended reg 37(3) statement was deficient.
[180] GB 11 - 44.
[181] That is a quote from Onslow Resources Ltd v Forrest & Forrest Pty Ltd [2015] WAMW 8B [46] in which Warden Maughan quoted Warden Tavener at [69] in Forrest & Forrest Pty Ltd v Onslow Resources Ltd [2014] WAMW 17.
As an annexure to its letter of 9 December 2015, Forrest also provided to the Minister the whole of its Outline of Submissions in the Forfeiture Proceedings comprising 30 pages. The Outline covered, in considerable length and detail, the nature and extent of Onslow's breaches of licence 51 by reference to the evidence. It included over three pages of submissions on 'Credibility Findings - Mr Slater', which summarised, and also in parts quoted verbatim, Mr Slater's evidence in the Forfeiture Proceedings. In its letter of 9 December 2015, Forrest highlighted ten identified paragraphs of those submissions relating to Mr Slater's evidence.
As noted earlier, Forrest also requested a copy of Onslow's appeal and its submissions in order to consider whether it wished to add anything further.

Forrest's submission of 4 February 2016

After the Department had forwarded to Forrest a copy of Onslow's letters of 17 and 19 November 2015, Forrest made further submissions by a letter dated 4 February 2016. In those submissions, Forrest:
1.Disputed Onslow's characterisation of the denial of its application for a new miscellaneous licence as a 'penalty'.[182]
[182] GB 55, 'Onslow's letter of 17 November 2015', point 1.
2.Repeated that Warden Maughan was not satisfied that Onslow would comply with any conditions imposed on a new miscellaneous licence if one were granted.[183]
[183] GB 55, 'Onslow's letter of 17 November 2015', point 1.
3.Made submissions about why there had never previously been an order for forfeiture, and, in that regard, made submissions as to its own position as a pastoralist.[184]
[184] GB 55 - 56, 'Onslow's letter of 17 November 2015', point 2.
4.In response to Onslow's submissions in relation to the Wheatstone project, Forrest submitted that:[185]
[185] GB 56 - 57, 'Onslow's letter of 17 November 2015', point 3.
(a)The Wheatstone project was irrelevant. There was no proper evidence led by Onslow as to the needs of the Wheatstone project, or that Wheatstone was wholly reliant on Onslow's sand from the Mining Lease.[186]
[186] GB 56, 'Onslow's letter of 17 November 2015', points 3(a) - (c).
(b)In any event, insofar as Onslow had stockpiled sand on licence 51 prior to its forfeiture, it had ample time to remove that material and set it aside for the Wheatstone project, and it failed to do so for commercial reasons (Forrest annexed five pages of its 'Restoration Submissions' addressing Mr Slater's evidence in that regard).[187]
[187] GB 56 - 57, 'Onslow's letter of 17 November 2015', point 3(d).
(c)Onslow, by Mr Slater, had failed to engage in communications with Forrest on the topic of access, and accordingly it 'cannot now be heard to rely on a lack of access to that material to support its appeal' (Forrest annexed seven pages of transcript of Mr Slater's evidence in the Renewal Proceedings in that regard).[188]
[188] GB 57, 'Onslow's letter of 17 November 2015', point 3(d).
5.Submitted that Onslow had sought to blame Forrest for its predicament, although Mr Slater subsequently resiled from that position. (Forrest annexed two pages of transcript of Mr Slater's evidence in the Forfeiture Proceedings in that regard.)[189]
[189] GB 57, 'Onslow's letter of 17 November 2015', point 4.
6.Submitted that as a matter of law, the warden had not erred in his interpretation of reg 37(3). Forrest also referred to pars 105 ‑ 126 of the 'Restoration Submissions', but without enclosing those pages of the 'Restoration Submissions'.[190]
7.Submitted that Onslow was and remained in breach of its obligations to remove the roadway and rehabilitate the ground at the time that it sought replacement licence 143. There was ample evidence, as submitted in the 'Restoration Submissions', for the warden to be satisfied that Onslow would not be compliant in the future.[191]
8.Submitted that if Onslow considered that Warden Maughan's decision was wrong at law, it could have applied for judicial review in the Supreme Court.[192]
9.Submitted that the Minister should reject the public interest grounds advanced by Onslow on the basis of the matters set out at point 4 above.[193]
10.Submitted that it was contrary to public interest to grant Onslow's appeal given:[194]
(a)the findings of Warden Tavener in the Forfeiture Proceedings and Warden Maughan in the Renewal Proceedings;
(b)that the application for replacement licence 143 was made and prosecuted in respect of ground over which Onslow was, and continued to be, in breach of its rehabilitation obligations in respect of forfeited licence 51;
(c)the manner in which Mr Slater treated Onslow's obligation as evidenced by pars 15(e) and 15(f) of Forrest's 'Restoration Submissions' (although Forrest did not enclose those pages); and
(d)the fact that Onslow continued to blame others. (Forrest enclosed five transcript pages of Mr Slater's evidence in the Forfeiture Proceedings in that regard.)
[190] GB 57 - 58, 'Onslow's letter of 19 November 2015', point 1 - 2.
[191] GB 58, 'Onslow's letter of 19 November 2015', point 4.
[192] GB 58, 'Onslow's letter of 19 November 2015', point 5.
[193] GB 58, 'Onslow's letter of 19 November 2015', point 6.
[194] GB 58 - 59, 'Onslow's letter of 19 November 2015', point 7.
As noted above, Forrest's letter dated 4 February 2016 contained a number of annexures:
1.Four pages from what it referred to as the 'Restoration Submissions', which submissions, it said, had been submitted under cover of its letter dated 9 December 2015.[195] These four pages were said to relate to Onslow's breach in stockpiling sand on licence 51 and failing to recover it and set it aside for the Wheatstone project, if it wished to do so.[196]
2.Seven pages of transcript of Mr Slater's evidence in the Renewal Proceedings.[197] These pages were said to relate to Onslow's communications with Forrest in relation to access, and Forrest's submission that Onslow could not be heard to complain of a lack of access in support of its appeal.[198]
3.Two pages of Mr Slater's evidence in the Forfeiture Proceedings,[199] said to relate to Onslow's conduct in seeking to blame Forrest.[200]
4.Seven pages of the transcript of Mr Slater's evidence in the Forfeiture Proceedings,[201] said to relate to Onslow's conduct in blaming others instead of accepting that its behaviour and conduct caused the problem.[202]
[195] GB 60 - 63.
[196] GB 57, 'Onslow's letter of 17 November 2015', point 3(d).
[197] GB 64 - 70.
[198] GB 57, 'Onslow's letter of 17 November 2015', point 3(d).
[199] GB 71 - 72.
[200] GB 57, 'Onslow's letter of 17 November 2015', point 4.
[201] GB 73 - 79.
[202] GB 59, 'Onslow's letter of 19 November 2015', point 7(d).
Forrest concluded its written submissions of 4 February 2016 in the following terms:[203]
For all of the above reasons and for those contained in our letter of 9 December 2015 Onslow's appeal should be refused.
[203] GB 59.
It should be observed here that whilst Forrest enclosed four pages of its 'Restoration Submissions' in the Renewal Proceedings under cover of its letter of 4 February 2016, it informed the Minister that the 'Restoration Submissions' had been previously 'submitted under cover of our letter of 9 December 2015'.[204] That does not appear to be an accurate statement. The 'Outline of Closing Submissions' enclosed under cover of Forrest's letter dated 9 December 2015 appears to relate to the Forfeiture Proceedings, not the Renewal Proceedings.[205]
[204] GB 57, 'Onslow's letter of 17 November 2015', point 3(d).
[205] See [139] above.

Merits of proposed ground 2A

Proposed ground 2A(a) is expressed too widely. Procedural fairness ordinarily requires that a decision‑maker actually consider relevant submissions which a party has an opportunity to make.[206]
[206] Forrest v Marmion [103] and the cases there cited.

As to proposed ground 2A(b), it is not correct to say that the parties in general, or Forrest in particular, incorporated by reference all of the material particularised (see (A) ‑ (F) in [113] above). In substance, Forrest made submissions on particular matters to the Minister. In relation to those matters, Forrest informed the Minister of the meaning and effect of the aspects of the wardens' decisions and the evidence and submissions before the wardens which Forrest contended were relevant. In some instances, Forrest supplied copies of transcripts and other documents which it said were in support of its submissions. The matters addressed were, in substance:
1.The nature and extent of Onslow's breaches of licence 51.
2.Onslow's failure to rehabilitate the roadway and ground the subject of licence 51 pending the determination of the Renewal Proceedings.
3.Onslow's conduct in blaming Forrest and others for its predicament.
4.An absence of proper evidence in the proceedings before the wardens as to the requirements for the Wheatstone project.
5.Warden Maughan's finding that Onslow would be unlikely to comply with the conditions imposed on any replacement miscellaneous licence, particularly having regard to the 'theme' of Mr Slater's evidence in the Forfeiture Proceedings and the Renewal Proceedings.
6.The proper construction and application of reg 37(3) of the Regulations.
In relation to proposed ground 2A(c) and (d), Forrest has not established that its submissions on the matters put to the Minister could not properly be considered without considering the materials particularised, ie, in effect, all the evidence and submissions in the Renewal Proceedings and in the Forfeiture Proceedings, the Forfeiture Decision, and the Renewal Decision. Forrest's submissions to the Minister put forward the substance of all of the matters which it asked the Minister to consider. Forrest's submissions could properly be considered without the Minister having regard to the materials particularised under proposed ground 2A(b). The primary judge was correct to find that the Minister did have the material before him that enabled him to give consideration to the matters relevant to the appeal.[207]
[207] Primary decision [86].
Insofar as ground 2A contends that s 94(3) or the requirements of procedural fairness required the Minister to consider, personally, all of the material generally referred to in Forrest's submissions to him on the appeal, encompassing all of the evidence, submissions and reasons in both proceedings before the warden, the contention must be rejected. There is nothing in the statutory text or purpose to sustain such an impractical construction. Procedural fairness was satisfied by provision of the opportunity to make submissions coupled with the Minister's consideration of those submissions.
Further, as indicated earlier at [125] above, there are very few additional documents which Forrest appears to contend that the Minister should have 'looked at'. Section 94, on its proper construction, did not require the Minister to have regard to all of the materials particularised under proposed ground 2A(b) in order to ascertain and consider the (few) documents now referred to by Forrest.
In relation, specifically, to Forrest's 'Restoration Submissions', it appears, at least prima facie, that Forrest had misinformed the Minister in its letter of 4 February 2016 that it had enclosed the 'Restoration Submissions' under cover of its letter of 9 December 2015. Insofar as the Minister was not provided with other parts of the 'Restoration Submissions' referred to by Forrest in its letter of 4 February 2016, it may have meant that the submissions of 4 February 2016 lacked some cogency. However, that does not mean that the submissions were not capable of being considered by the Minister. Nor does it mean that the Minister had to locate the 'Restoration Submissions' himself, or provide Forrest with more time to provide a copy of them. Either course would have resulted, in substance, in the augmentation of Forrest's submissions of 4 February 2016. Forrest was given a specified, but ample, time to put in its submissions. The Minister had no obligation to facilitate or make provision for Forrest to augment its submissions of 4 February 2016, even if they appeared to lack some cogency.
Finally, the decisions in Pilcher and O'Connor, to which Forrest referred in its submissions in support of its application for leave to amend, do not provide any material assistance to Forrest. Nor does the fact that the Act and the Mining Regulations came into effect together on 1 January 1982 provide any material assistance to Forrest.
In general terms, the decisions in Pilcher and O'Connor refer, relevantly for present purposes, to the proposition that where a legislative scheme is comprised of the statute and the regulations made under it, the regulations may be considered to understand the nature of the scheme. The principal High Court decision relied on for that proposition is Deputy Federal Commissioner of Taxation for the State of South Australia v Ellis & Clark Ltd.[208] In that case, Dixon J observed that the sales tax legislation was effected by 18 separate taxing statutes which constituted a single legislative scheme, and that 'moreover, the legislation depends in a remarkable degree upon the regulations made under the power which it confers on the Executive. Without the regulations, not only is it unworkable, but the expression of legislative policy is so inadequate as almost to be unintelligible'.[209] Dixon J in that case went on to examine the general policy of the legislation in that light.[210]
[208] Deputy Federal Commissioner of Taxation for the State of South Australia v Ellis & Clark Ltd [1934] HCA 54; (1934) 52 CLR 85.
[209] Ellis & Clark (89).
[210] Ellis & Clark (89 - 95).
In Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation,[211] the High Court referred to Dixon J's decision in Ellis & Clark as indicating the 'underlying legislative policy' of the sales tax legislation. In argument, Mason J observed that one looks at regulations not to construe an overall scheme, nor to throw light on an ambiguous statutory provision, 'but to ascertain what the scheme is'.[212]
[211] Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation [1985] HCA 20; (1985) 156 CLR 651, 657.
[212] Brayson (652).
In O'Connell, a question arose as to the proper construction of an amendment to a statutory provision enacted against the background of a detailed delegated legislative scheme dealing extensively with the subject matter of the amendment.[213] Nettle JA (Chernov & Redlich JJA agreeing) observed that, as in Ellis & Clark, the legislative scheme was not only unworkable, but the expression of the legislative policy was so inadequate as almost to be unintelligible.[214] Moreover, in that case, the relevant statutory provision under consideration commenced with the words 'Subject to the regulations'.[215]
[213] O'Connell [6], [23].
[214] O'Connell [19].
[215] O'Connell [6], [26] (emphasis added).
There are no words in s 94 of the Act equivalent to the phrase 'subject to' used in the provision under consideration in O'Connell.
Further, in the present matter, even if reg 91(1) forms part of a 'legislative scheme' with s 94(3) and s 94(4) of the Act in the sense referred to in the above cases (which may be doubted), it is no more than a time and manner provision which requires the appeal to the Minister to be lodged within 14 days and to be by way of written submissions. Regulation 91(2), insofar as it also forms part of a 'legislative scheme' in the sense discussed in the previous cases (which, again, may be doubted), merely serves to indicate that the Minister is not confined to the applicant's submissions, but 'may obtain such further information in writing from any other party to the matter and from any other sources as he sees fit'.
If and insofar as there is a statutory 'scheme' in this context, it is not a scheme by which the jurisdiction of the Minister depended upon the Minister obtaining or having regard to the evidence and submissions in the Renewal Proceedings including all the evidence and submissions in the Forfeiture proceedings, Forrest's 'Restoration Submissions', the Forfeiture Decision, and the Renewal Decision.

Conclusion

The application to amend in terms of proposed ground 2A should be dismissed. The appeal should be dismissed.