Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum
[2017] WASC 68
•20 MARCH 2017
FORREST & FORREST PTY LTD -v- THE HONOURABLE WILLIAM RICHARD MARMION, MINISTER FOR MINES AND PETROLEUM [2017] WASC 68
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASC 68 | |
| Case No: | CIV:2633/2016 | 12 & 13 JANUARY 2017 | |
| Coram: | MARTINO J | 20/03/17 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Application for judicial review dismissed | ||
| B | |||
| PDF Version |
| Parties: | FORREST & FORREST PTY LTD THE HONOURABLE WILLIAM RICHARD MARMION, MINISTER FOR MINES AND PETROLEUM ONSLOW RESOURCES LTD |
Catchwords: | Administrative law Application for judicial review of decision of Minister to allow appeal from decision of Warden Jurisdictional error Procedural fairness Unreasonableness |
Legislation: | Mining Act 1978 (WA) Mining Regulations 1981 (WA) |
Case References: | Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41 Builders' Licencing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616 Commonwealth v Western Australia (1999) 196 CLR 392 Corps v North [2008] WAMW 15 Forrest & Forrest Pty Ltd v Onslow Resources Ltd [2014] WAMW 17 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Hunter Resources Ltd v Melville (1988) 164 CLR 234 Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 90 ALJR 901 Minister for Immigration and Citizenship v Li [2013] HCA 332; (2013) 249 CLR 332 Nova Resources NL v French (1995) 12 WAR 50 Onslow Resources Ltd v Forrest & Forrest Pty Ltd [2015] WAMW 8A Onslow Resources Ltd v Forrest & Forrest Pty Ltd [2015] WAMW 8B Re Minister for Mines, Fuel and Energy; Ex parte Trythall (1992) 7 WAR 375 Re Minister for Resources ; Ex parte Cazaly [2007] WASCA 175; (2007) 34 WAR 403 St Barbara Ltd v Minister for Energy Resources, Industry & Enterprise [2008] WASCA 248 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
THE HONOURABLE WILLIAM RICHARD MARMION, MINISTER FOR MINES AND PETROLEUM
Respondent
ONSLOW RESOURCES LTD
First Other Party
Catchwords:
Administrative law - Application for judicial review of decision of Minister to allow appeal from decision of Warden - Jurisdictional error - Procedural fairness - Unreasonableness
Legislation:
Mining Act 1978 (WA)
Mining Regulations 1981 (WA)
Result:
Application for judicial review dismissed
Category: B
Representation:
Counsel:
Applicant : Mr S M Davies SC & Mr A J Papamatheos
Respondent : No appearance
First Other Party : Mr M T McKenna & Ms A Macmaster
Solicitors:
Applicant : Mizen & Mizen
Respondent : No appearance
First Other Party : All Mining Legal Pty Ltd
Case(s) referred to in judgment(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41
Builders' Licencing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616
Commonwealth v Western Australia (1999) 196 CLR 392
Corps v North [2008] WAMW 15
Forrest & Forrest Pty Ltd v Onslow Resources Ltd [2014] WAMW 17
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Hunter Resources Ltd v Melville (1988) 164 CLR 234
Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 90 ALJR 901
Minister for Immigration and Citizenship v Li [2013] HCA 332; (2013) 249 CLR 332
Nova Resources NL v French (1995) 12 WAR 50
Onslow Resources Ltd v Forrest & Forrest Pty Ltd [2015] WAMW 8A
Onslow Resources Ltd v Forrest & Forrest Pty Ltd [2015] WAMW 8B
Re Minister for Mines, Fuel and Energy; Ex parte Trythall (1992) 7 WAR 375
Re Minister for Resources ; Ex parte Cazaly [2007] WASCA 175; (2007) 34 WAR 403
St Barbara Ltd v Minister for Energy Resources, Industry & Enterprise [2008] WASCA 248
1 MARTINO J: The applicant, Forrest & Forrest, applies for judicial review of the decision of the respondent, the Minister, made under s 94(3) of the Mining Act 1978 (WA), to uphold an appeal by the first other party, Onslow Resources, against a decision of Warden Maughan refusing to grant a miscellaneous licence to Onslow Resources. The Minister has filed a notice that he will abide by the decision of the court other than as to costs. For the following reasons I have decided to dismiss the application.
The background to the appeal to the Minister
2 On 21 March 2011 Miscellaneous Licence L08/51 was granted in respect of land in the locality of Minderoo to Quarry Park Pty Ltd for the purpose of an access road. L08/51 was transferred to Onslow Resources on 22 October 2012. It provided access between Twitchen Road and mining lease M08/458. Both L08/51 and M08/458 were on the Minderoo pastoral lease which was and is held by Forrest & Forrest. Onslow Resources mined sand and aggregate on M08/458, from the Ashburton River riverbed.
3 On 22 August 2013 Forrest & Forrest lodged an application for forfeiture of L08/51. On 31 July 2014 Warden Tavener ordered that by reason of Onslow Resources' breaches of conditions of L08/51 in stockpiling material and placing infrastructure on the tenement L08/51 be forfeited: Forrest & Forrest Pty Ltd v Onslow Resources Ltd [2014] WAMW 17.
4 On the same day that Warden Tavener delivered his decision Onslow Resources applied for Miscellaneous Licence L08/143 over the same ground as L08/51. On 8 August 2014 Onslow Resources applied for the cancellation of the forfeiture of L08/51.
5 Warden Maughan heard both of Onslow Resources' applications. On 5 June 2015 Warden Maughan made procedural rulings in the applications. The Warden ruled:
(i) It was not his role to simply review Warden Tavener's decision;
(ii) He was entitled to consider by way of the evidence before Warden Tavener and new evidence whether any special circumstances existed which enabled him to give consideration as to restoration of the miscellaneous licence; and
(iii) If there was no new evidence or evidence which ought properly have been before Warden Tavener then Warden Maughan ought not to substitute the exercise of his discretion over the exercise of Warden Tavener's discretion to order forfeiture: Onslow Resources Ltd v Forrest & Forrest Pty Ltd [2015] WAMW 8A (Onslow Resources v Forrest & Forrest (No 1)).
6 On 6 November 2015 Warden Maughan delivered his decision refusing both Onslow Resources' application for cancellation of the forfeiture of L08/51 and its application for L08/143: Onslow Resources Ltd v Forrest & Forrest Pty Ltd [2015] WAMW 8B (Onslow Resources v Forrest & Forrest (No 2)).
7 On 17 November 2015 Onslow Resources by its director Mr Warren Slater wrote to the Minister for Mines and Petroleum, purporting to appeal against both of Warden Maughan's decisions. The letter contained eight reasons for appeal. There is no right of appeal against the Warden's decision refusing to cancel the forfeiture of L08/51.
8 On 19 November 2015 Onslow Resources wrote another letter to the Minister. This letter confined the appeal to Warden Maughan's decision to refuse the application for L08/143. The letter contained detailed submissions in support of the appeal.
9 On 25 November 2015 the Department of Mines and Petroleum wrote to Forrest & Forrest care of its solicitors Mizen + Mizen informing Forrest & Forrest that Onslow Resources had appealed pursuant to s 94(3) of the Act against Warden Maughan's decision to refuse the application for L08/143, that Forrest & Forrest had the opportunity to provide information that would be provided to the Minister to assist him in his determination of the appeal and that any information that Forrest & Forrest wished to submit was required to be received by the Department by 9 December 2015.
10 On 9 December 2015 Mizen + Mizen wrote to the Department making submissions as to why the appeal should be dismissed and requesting a copy of Onslow Resources' appeal and any submissions made in support of the appeal. Mizen + Mizen enclosed with the letter a copy of the outline of closing submissions made by counsel for Forrest & Forrest to Warden Tavener on the application for forfeiture of L08/51.
11 The Department wrote to Mizen + Mizen on 22 January 2016 enclosing copies of Onslow Resource's letters of 17 November 2015 and 19 November 2015 and informing Mizen + Mizen that they had the opportunity to provide comment on Onslow Resources' submissions by 5 February 2016.
12 By letter dated 4 February 2016 Mizen + Mizen made submissions on Onslow Resources' letters of 17 November 2015 and 19 November 2015. Mizen + Mizen attached to the letter copies of four pages of the submissions that counsel for Forrest & Forrest had made to Warden Maughan, seven pages of the transcript of the cross-examination of Mr Slater at the hearing before Warden Maughan and of an exchange of emails between Minderoo Station and Onslow Resources which had been tendered in evidence at that hearing.
13 By a briefing note dated 21 March 2016 the Department submitted Onslow Resources' 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 was common ground at the hearing before me that attached to the briefing note were copies of Onslow Resources' letters of 17 November 2015 and 19 November 2015, Mizen + Mizen's letters of 9 December 2015 and 4 February 2016 and the attachments to Mizen + Mizen's letters. It was also common ground that the Minister did not have before him a copy of Warden Maughan's reasons in Onslow Resources Ltd v Forrest & Forrest Pty Ltd (No 2) or the evidence or material before the Warden other than the enclosures with Mizen + Mizen's letters to the Department.
14 The briefing note recommended that the Minister select one of two options:
Option 1 – determine to dismiss the Appeal by Onslow Resources Ltd;
Option 2 – determine to uphold the Appeal by Onslow Resources Ltd and indicate your intention to grant L08/143 subject to the application satisfying the future act requirements of the Native Title Act 1993 (Cth).
15 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 + Mizen that the Minister had upheld Onslow Resources' appeal.
The grounds of Forrest & Forrest's application for judicial review
16 There are two grounds of Forrest & 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 the applicant procedural fairness by considering and determining an appeal other than in an obvious and natural way, without so notifying the applicant or affording it an opportunity to be heard as to the absence of the decision or materials before him.
17 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 miscellaneous licence 08/51 (L08/51) for breaches of tenement conditions by the first other party;
(c) in making his decision to refuse the application for L08/143 (which was identical to, and intended to replace, the former L08/51), and after a contested hearing of an objection by the applicant with evidence from the applicant and the first other party, a different Warden (Warden Maughan) made findings in his reasons that the first other party:
(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 respondent undertook no inquiry to identify a basis to depart from the Warden's finding that the first other party 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 respondent 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 L08/143, as contemplated by the legislation, would not likely be achieved or would be frustrated.
The provisions of the Mining Act and the Mining Regulations concerning miscellaneous licences
18 The provisions of the Mining Act that provide for the granting of mining tenements are contained in pt IV. The procedure for obtaining a mining tenement turns on the type of tenement for which application is made. Exploration licences, retention licences, mining leases and general purpose leases are granted by the Minister, who receives a recommendation from the mining registrar or the Warden. Prospecting licences and miscellaneous licences are granted by the mining registrar or the warden.
19 Part IV div 5 deals with miscellaneous licences. Section 91(1) provides that the mining registrar or the warden may, on the application of any person, grant in respect of any land a licence, to be known as a miscellaneous licence, for a prescribed purpose. A miscellaneous licence is not to be granted unless the purpose for which it is granted is directly connected with mining: s 91(6). The purposes for which a miscellaneous licence may be granted are prescribed in reg 42B of the Mining Regulations 1981 (WA) and include a road.
20 Sections 41, 42, 44, 46, 46A, 47 and 52, which are contained in pt IV div 1 and apply to the granting of a prospecting licence, apply with appropriate modifications to the granting of a miscellaneous licence: s 92.
21 An application for a miscellaneous licence is to made in the prescribed form and manner: s 41(1). Regulation 37(3) provides that within 35 days of the application for a miscellaneous licence the applicant is to 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.
22 Where a person objects to the granting of an application for a miscellaneous licence the warden is to conduct a hearing and determine the application and is to give any person who has objected an opportunity to be heard: s 42(3).
23 There is a right of appeal to the Minister in the time and the manner prescribed against the refusal by the warden of an application for miscellaneous licence or the grant of a licence on conditions which the applicant considers unreasonable: s 94(3). The prescribed provisions are contained in reg 91 which provides that the appeal is to be in the form of a submission in writing lodged within 14 days of the date of the refusal and that the Minister may obtain such further information in writing from any other party and from any other sources as the Minister sees fit to assist in the determination of the appeal.
24 A miscellaneous licence is subject to the terms and conditions prescribed: s 94(1) and contains conditions that the licensee is liable to have the licence forfeited if the licensee is in breach of any of the licence’s covenants or conditions: reg 41.
25 The warden may upon the application of the Minister, a mining registrar, an authorised officer of the Department or any person make an order for the forfeiture of a miscellaneous licence: s 96(1). On such an application the warden can, as an alternative to making an order for forfeiture of the miscellaneous licence impose a penalty on the licensee or impose no penalty: s 96(3).
26 A person who was the holder of a miscellaneous licence that has been forfeited under s 96 other than by reason of non-compliance with an expenditure condition may apply for cancellation of that forfeiture: s 97A(1). The application is heard by a warden who can grant the application and restore the miscellaneous licence to the former holder, grant the application and restore the miscellaneous licence to the former holder subject to further or other conditions or refuse the application: s 97A(7).
The reasons of Warden Maughan in Onslow Resources v Forrest & Forrest (No 2)
27 In par 2 to 11 of his reasons in Onslow Resources v Forrest & Forrest (No 2) the Warden set out the background to the applications before him. Onslow Resources is controlled by Mr Warren Slater and is a related company to Yarri Mining Pty Ltd and Quarry Park Pty Ltd, which are also owned and controlled by Mr Slater. Through Mr Slater and his related companies Onslow Resources has significant experience in mining and mining tenements, having held from time to time over 50 mining tenements since early 1980.
28 The Warden referred to the decision of Warden Tavener in Forrest & Forrest Pty Ltd v Onslow Resources Ltd to order forfeiture of L08/51 and quoted from Warden Tavener's reasons:
68. 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.
69.Mr Slater's evidence was to the effect the respondent had complied with the application process; after receiving approval, effectively, he was under no obligation to comply if costs were to be incurred.
70.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.
71.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.
72.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.
73.This is a serious breach following the respondent ignoring its obligation to comply with the conditions of its lease.
29 In par 12 to 19 Warden Maughan stated the legal principles concerning restoration of a forfeited mining tenement and an application for a new miscellaneous licence. The Warden referred to provisions of the Mining Act and, in par 15 and 16, to two decisions concerning applications for cancellation of forfeiture of mining tenements:
15. Restoration of the mining tenement and cancellation of the forfeiture requires consideration of the circumstances that led to the forfeiture and whether there are special circumstances to justify restoration on BRGM Nominees Pty Ltd v Hake, Saggers and Graham noted 8 AMPLA Bulletin 17.
16 The test, as identified in BRGM Nominees Pty Ltd, has been generally applied by Wardens - see for example, Karrilea Holdings Pty Ltd [2007] WAMW 7 where the following principles were identified.
I The Warden must be mindful of the circumstances in which the forfeiture occurred and the reasons for the forfeiture;
II It must be taken that the Warden who awarded forfeiture was satisfied that in the circumstances of the case of the evidence that was deemed before the Warden it was not appropriate as an alternative to make the forfeiture order to impose a financial penalty on the holder.
III A consideration of whether there are special circumstances cannot in any way include a review of the decision of the Warden who ordered the forfeiture; and
IV In order to secure restoration on grounds that special circumstances exist the applicant will need to demonstrate that there are circumstances that were relevant in material at the time that the forfeiture order was made but was not brought to the attention of the Warden or that special circumstances have arisen since the Warden's decision.
30 The Warden then summarised the evidence before him. There were two affidavits from Mr Slater, who also gave oral evidence and an affidavit from Onslow Resources' solicitor. The evidence and submissions in the forfeiture proceedings before Warden Tavener were adduced in evidence before Warden Maughan. Forrest & Forrest called evidence from a botanist, Martin John Henson.
31 Mr Slater gave evidence that L08/51 provides the only means of access to M08/458, that the forfeiture of L08/51 had meant that there was no ready means of vehicular access to M08/458 and that no mining rehabilitation activities could be carried out on that lease. Onslow Resources had a substantial amount of mined sub-base and shingle stockpiled on M08/458 which it needed to form a hardstand on a general purpose lease held by Yarri Mining. Onslow Resources also wished to continue mining sand and shingle from M08/458. It needed access to that mining tenement to complete rehabilitation of it.
32 Mr Slater agreed in evidence that following forfeiture of L08/51 he had an obligation to rehabilitate the land in respect of which the tenement was granted. The Warden said that it was clear from the evidence of Mr Slater and Mr Henson that some rehabilitation work had been done but the road on the tenement remains largely intact. The Warden referred to Mr Slater's evidence that it would 'seem senseless' to remove the road when Onslow Resources was applying for another miscellaneous licence in respect of the same land. (The copy of the Warden's reasons in the papers provided to me referred to a Mr North giving this evidence. The reference to Mr North was a slip which was corrected by the Warden after the reasons had been provided to the parties.)
33 Mr Slater gave evidence that he had not removed the stockpiled material from M08/458 after the application for forfeiture of L08/51 had been made because he did not have sales for those materials. An employee of Onslow Resources had corresponded with the pastoralists in relation to rehabilitation of M08/458 but when the pastoralists had required details of the works to be undertaken Mr Slater had told his employees not to continue the discussions.
34 Mr Slater gave evidence that he had access to M08/458 through other tenements but said that it would be uneconomic to do so as that would require the construction of a 25 km road. (M08/458 was referred to as M08/438 in par 33 of the reasons in the papers provided to me, a slip which was also corrected after the reasons were provided to the parties.)
35 The affidavit of Onslow Resources' solicitor annexed a letter dated 14 July 2015 to the Department of Mines and Petroleum forwarding a statement provided pursuant to reg 37(3) of the Mining Regulations which Onslow Resources sought to substitute for an earlier statement that it has provided.
36 In par 36 to 40 of his reasons Warden Maughan stated his findings as to the application for reinstatement of L08/51. In par 36 he listed four matters that Onslow Resources submitted constituted new evidence which was not or could not reasonably have been before Warden Tavener, namely:
a. Onslow's need to access to M08/458 to rehabilitate it;
b. Onslow's need to access to M08/458 to remove its stockpile and hardstand;
c. Onslow's need to access to M08/458 to mine the sand on that tenement, which is being replenished by the river. Onslow has been prevented from doing this since by the Order of Forfeiture of LO8/51, and;
d. Onslow has lost its contract with NRW as a result of a stop-work order in relation to M08/458 and LO8/51.
37 Warden Maughan did not accept that submission and found that those matters were before Warden Tavener. Warden Maughan found that there were no special circumstances warranting ordering the reinstatement of the forfeited miscellaneous licence.
38 The Warden then turned to the application for miscellaneous licence L08/143, which at times is referred to as M08/143 in the reasons. The Warden referred to Forrest & Forrest's submissions that on public interest grounds it was not appropriate to grant a new miscellaneous licence to Onslow Resources when Onslow Resources had not complied with its obligations under L08/51. 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 Resources' 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.
39 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 Forrest & Forrest Pty Ltd v Onslow Resources Ltd 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].
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].
41 Warden Maughan then referred to Onslow Resource'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:
I reject the submission because:
i. No notice has been served upon me pursuant to s 111A(1)(a);
ii. In my view the application in its present form falls to be heard and determined by me pursuant to s 42 and 97 of the Mining Act;
iii. Any refusal by me to grant the application, can, in any event, be appealed by the applicant to the Minister under s 94(3) of the Mining Act. In the course of making a decision on the appeal the Minister can, under s 111A, refuse to grant in the public interest [49].
42 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 Resources sought to substitute for that statement another reg 37(3) statement annexed to an affidavit of Onslow Resources' solicitor. That proposed substituted statement provided that the proposed work in connection with the licence was the existing road on L08/51. The Warden considered the provisions of the Act and regulations, the principles of statutory interpretation explained in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41 and the decision of Warden Campione in Corps v North [2008] WAMW 15. Warden Maughan expressed the view that Corps v North was wrongly decided. 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 Resources proposed to build a new road).
43 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. Warden Wilson observed in Zanthas Resources P/L and ors v Mineralogy P/L [2014] WAMW 20:
There is a long list of authorities that establish it is a requirement that an Application for a Miscellaneous Licence must comply in all respects with the provisions of the act and regulations. Any non-compliance with the provisions of the act and regulations is fatal to the application.
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 [60] - [61].
44 Warden Maughan refused both the application for restoration of the forfeited miscellaneous licence and the application for a new miscellaneous licence.
Onslow Resources' letter of 17 November 2015
45 In its letter to the Minister dated 17 November 2015 Onslow Resources appealed against both of the decisions of Warden Maughan made in Onslow Resources v Forrest & Forrest (No 2). The letter was written by its director Mr Slater.
46 He provided nine reasons for the appeal. They were:
1. The forfeiture of L08/51 and the refusal of the application for L08/143 was too harsh a penalty. Onslow Resources contended that there had never been a forfeiture for the reasons given by the Warden in the history of the Mining Act and that a more appropriate action was a penalty based on the nature of the breach.
2. Onslow Resources had been supplying sand for the Chevron Wheatstone Project from M08/458, since the forfeiture of L08/51 Onslow Resources had been obliged to open and mine sand from another lease, the sand from the new lease had been exhausted and Onslow Resources required urgent access 'to the landlocked lease via' L08/51.
3. The sand required for the Wheatstone Project was vital to the concrete mix design, that the sand obtained from another resource would require six months of testing before use and Chevron was anxious to hear the result of Onslow Resources' appeal.
4. Onslow Resources could not afford to lodge an appeal to the Supreme Court as it would take too long to resolve and the sand was urgently required. Onslow Resources said that it had been advised by its client Boral that there was a requirement for the sand for another 18 months on the project.
5. The sand on M08/458 is the only replenished sand available on the river leases so that it was imperative that 'this decision is upheld for the Public Interest of the Wheatstone Project'.
6. The loss of the access to sand and aggregate stockpiled on M08/458 had landlocked all of Onslow Resources' products including 35,000 tonnes of road base, approximately 50,000 tonnes of shingle aggregates and approximately 50,000 tonnes of concrete sand in the river bed. Onslow Resources contended that the value of these materials was in excess of $2 million.
7. As a result of Onslow Resources' inability to supply these materials its clients had been obliged to obtain more expensive materials from further away.
8. The access road was 300 m long. It is a condition of mining leases to have an access road to the mining operations. Onslow Resources had been closely scrutinised by Forrest & Forrest which intended to cause disruption to the mining operations on M08/458 so that Onslow Resources would be unable to market its materials when they were most required for projects such as the Wheatstone Project.
9. Onslow Resources had already suffered a severe penalty by its inability to obtain access to its resources for approximately two years. The costs to mine and stockpile materials had been a large burden and if Onslow Resources missed the opportunity to market the materials for the current project there would be a long wait for the next opportunity.
47 After providing those nine reasons Mr Slater concluded:
Finally we say that we now all know that we have erred in our judgement to stockpile materials on the miscellaneous licence that caused the forfeiture of L08/51 and are sincerely sorry for that and for this inconvenience we have caused you and your Warden, however we ask that you consider the situation at hand and look at the issues of importance in the Public Interest and for the Wheatstone Chevron requirements.
Onslow Resources' letter of 19 November 2015
48 Onslow Resources' letter to the Minister dated 19 November 2015 was also written by Mr Slater. He began the letter by confirming that Onslow Resources wished to appeal against the decision of Warden Maughan to refuse the application for miscellaneous licence L08/143 and that the letter contained submissions pursuant to s 94(3) of the Mining Act additional to the submissions contained in the letter of 17 November 2015.
49 He wrote that in Onslow Resources v Forrest & Forrest (No 2) Warden Maughan had decided that the application for M08/458 should be refused because:
(a) the application was fatally flawed; and
(b) Onslow Resources would not comply with any conditions imposed on the miscellaneous licence if granted.
50 Mr Slater submitted that the Warden had no grounds to refuse the application or that his decision was based on irrelevant considerations under the Mining Act. He requested that the Minister not follow the decision but exercise his discretion to grant the application.
51 Mr Slater submitted that in finding that non-compliance with reg 37(3) was fatal to the application Warden Maughan erred in law. He submitted that the Warden should have followed Warden Campione's decision in Corps v North that non-compliance with the regulation was not fatal to an application. He submitted that the decision of Warden Wilson in Zanthus Resources Pty Ltd v Mineralogy did not concern non-compliance with reg 37(3) and that Warden Maughan erred in applying it to Onslow Resources' application.
52 Mr Slater also submitted that in refusing the application because he was not satisfied that Onslow Resources would comply with any conditions imposed on a licence Warden Maughan relied on irrelevant considerations and imposed a further penalty on Onslow Resources in addition to the forfeiture of L08/51. He submitted that a tenement holder of a miscellaneous licence which is forfeited is not prohibited from making an application for the same mining tenement. Onslow Resources acknowledged the breach of condition which resulted in the forfeiture of L08/51 and would comply with all conditions on its current and future mining tenements. Mr Slater submitted that to refuse the application based on the previous breach was 'punitive and contrary to the intentions' of the Mining Act.
53 Mr Slater referred to the submissions contained in the letter of 17 November 2015 as to the need to supply sand to the Wheatstone Project and submitted that it was in the public interest, both to the Wheatstone Project and to the State, for the application to be granted.
Mizen + Mizen’s letter of 9 December 2015
54 Mizen + Mizen's letter to the Department of Mines and Petroleum dated 9 December 2015 was a response to the Department's letter of 25 November 2015 providing Forrest & Forrest with the opportunity to provide information to assist the Minister in determining Onslow Resources' appeal. Mizen + Mizen requested a copy of Onslow Resources' appeal so that they could consider supplementing the submissions contained in the letter of 9 December 2015.
55 Mizen + Mizen noted that the Department had informed them that Onslow Resources' appeal was based on the assertion that the Warden had no grounds to refuse the miscellaneous licence or alternatively that the Warden had made a decision based on irrelevant considerations under the Mining Act. They observed that Warden Maughan conducted a full hearing of the application and had the benefit of written and oral submissions.
56 They also noted that Warden Maughan also had the benefit of having before him all of the evidence that had been presented in Forrest & Forrest's application for forfeiture of L08/51. Mizen + Mizen enclosed a copy of Forrest & Forrest's outline of closing submissions in the forfeiture application and highlighted paragraphs of those submissions which, they submitted, justified Warden Maughan's lack of confidence in Onslow Resources' attitude to compliance. The outline of closing was a 30 page document which contained submissions as to the key findings of fact that the Warden should make on the forfeiture application, including adverse credibility findings that should be made against Mr Slater.
57 Mizen + Mizen submitted that Warden Maughan had accurately set out the background to Onslow Resources' application for L08/143 in par [2] - [11] of his decision.
58 Mizen + Mizen submitted that the contention that Warden Maughan had no grounds to refuse Onslow Resources' application was not correct:
The contention that the Warden had no grounds to refuse Onslow's application is not correct. The grounds for the Warden's decision to refuse Onslow's application, were:
(a) it was not in the public interest to grant the tenement to Onslow because:
(i) Onslow did not comply with its remedial obligations which was a condition of the grant of L08/51: see paragraph [45] of the Warden's decision;
(ii) the theme of Mr Slater's evidence in the forfeiture application, namely:
"Effectively, he was under no obligation to comply if costs were to be incurred".
(b) Onslow had not complied with Regulation 37(3) of the Mining Regulations in that:
(i) the proposed amended Regulation 37(3) Statement was deficient; and
(ii) the Regulation 37(3) Statement as originally filed was non-compliant,
and that therefore the application by Onslow for the miscellaneous licence was fatally flawed.
In these circumstances the assertion by Onslow that the Warden had no grounds to refuse the miscellaneous licence, is plainly wrong.
Onslow's alternative assertion that the Warden's decision was based upon irrelevant considerations, is also wrong.
Mizen + Mizen's letter of 4 February 2016
59 In their letter to the Department dated 9 December 2015 Mizen + Mizen made submissions on the matters raised in Onslow Resources' letters of 17 and 19 November 2015. The submissions as to the letter of 17 November 2015 were:
1. The refusal of the application for L08/143 was not a penalty but was made because the Warden found that the application was fatally flawed and in any event he was not satisfied that Onslow Resources would comply with any condition imposed on the licence if it were granted.
2. Whether or not that there had ever been a forfeiture for the reasons given by the Warden was irrelevant. Forrest & Forrest made the forfeiture application on the basis that Onslow Resources was in serious breach of the conditions of L08/51.
3. There was no evidence that sand from M08/458 was required for the Wheatstone Project. In any event Onslow Resources had ample opportunity before the forfeiture decision to remove stockpiled materials from L08/51 if it wished to do so. It chose not to do so for commercial reasons with the full knowledge that it was breaching the conditions of the licence. A copy of two paragraphs of Forrest & Forrest's submissions to Warden Maughan on this point was attached to the letter. Mizen + Mizen also pointed to evidence before Warden Maughan that Mr Slater had refused to provide information requested by Forrest & Forrest as to Onslow Resources' rehabilitation proposal. Copies of relevant pages of transcript and of an exchange of emails between Minderoo Station and Onslow Resources which had been tendered in evidence as an exhibit were enclosed with Mizen + Mizen's letter.
4. Onslow Resources appeared to blame Forrest & Forrest for its predicament. However at the hearing before Warden Maughan Mr Slater had admitted that he had never said that it was unreasonable for Mr Forrest to make the complaints that he did. A copy of the transcript containing Mr Slater's evidence on this issue was enclosed with Mizen + Mizen's letter.
60 The submissions as to the letter of 19 November 2015 were:
1. Warden Maughan's decision not to follow the decision in Corps v North was the correct decision.
2. The Warden was entitled to conclude that Onslow Resources would not comply with any conditions imposed on a miscellaneous licence.
3. If Onslow Resources considered that Warden Maughan's decision was wrong in law it could pursue judicial review in the Supreme Court, which it had not done.
4. The Minister should reject the public interest arguments put forward by Onslow Resources for the reasons contained in par 3 of Mizen + Mizen's submissions as to the letter of 17 November 2015.
5. Mizen + Mizen repeated its submissions that it would not be in the public interest to allow Onslow Resources' appeal.
The briefing note to the Minister dated 21 March 2016
61 The briefing note submitted for the Minister's determination Onslow Resources' appeal. Paragraphs of the briefing note have been ticked and there are some hand written notations on it. These ticks and notations appear to have been made by the Minister.
62 It contained information as to the background to the appeal and a summary of the submissions made by Onslow Resources in its letters of 17 and 19 November 2015 and by Mizen + Mizen in their letters of 9 December 2015 and 4 February 2016.
63 The letter then contained the Department's comment, which was in the following terms:
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 L08/51, 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 L08/51 Onslow did not remediate the road constructed on the licence however in its view for good reason, L08/143 was applied for the same purpose. Onslow should have sought guidance from DMP 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. DMP is responsible for ensuring conditions imposed on title are adhered to.
64 The briefing note concluded with the recommendation that the Minister select one of the two options which I have quoted earlier in these reasons.
The nature of an appeal to the Minister under s 94(3)
65 The powers contained in s 42(3) and s 91 for a warden to conduct a hearing to determine an application for a miscellaneous licence to which objection has been made and to grant the miscellaneous licence are administrative in character: St Barbara Ltd v Minister for Energy Resources, Industry & Enterprise [2008] WASCA 248 [27] per Steytler P, Buss JA and Newnes AJA agreeing.
66 Ultimate decision-making power under the Act rests largely with the Minister: St Barbara Ltd v Minister for Energy Resources, Industry & Enterprise [26].
67 An appeal is not a common law proceeding but a remedy given by statute: Builders' Licencing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616 (619) Mason J. The nature of an appeal provided for by a statute is to be determined by an examination of the legislative provisions: Builders' Licencing Board v Sperway Constructions (Sydney) Pty Ltd (621 - )622 Mason J.
68 In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [20] Gleeson CJ, Gummow and Kirby JJ analysed Mason J's reasons in Builders' Licencing Board v Sperway Constructions (Sydney) Pty Ltd as distinguishing 'between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of hearing de novo'.
69 As appeals are creatures of statute no taxonomy is likely to be exhaustive: Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 [57] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, who considered that relevant classes of appeal for the purpose of that case were:
1. Appeal in the strict sense – in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given.
2. Appeal de novo – where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error.
3. Appeal by way of rehearing – where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error.
70 Re Minister for Mines, Fuel and Energy; Ex parte Trythall (1992) 7 WAR 375 concerned an appeal under s 56 of the Mining Act against the refusal of a prospecting licence under s 40 of the Act. At the time s 56 was in similar terms to the current provisions in s 56 and s 94. Ipp J said that it could be accepted that on an appeal to the Minister 'the original decision may be reviewed de novo as if the appeal were a rehearing': p 383. The Minister has wider powers to grant an application than does the Warden: Re Minister for Mines Fuel and Energy; Ex parte Trythall at 385.
71 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.
Grounds 1(a) and 1(b)
72 Ground 1 of the application is that the Minister erred in making the decision to allow the appeal without having before him the decision of the Warden and/or the materials that were before the Warden. The Minister did have before him the decision of Warden Maughan. The Minister was determining an appeal against that decision. However he did not have before him the reasons for that decision.
73 Ground 1(a) is that by allowing the appeal without the Warden's decision and/or the materials before the Warden the Minister committed a jurisdictional error by purporting to exercise the appeal jurisdiction without inquiring as to the materials necessary to determine the appeal and/or failing to take into account relevant considerations. Ground 1(b) is that in allowing the appeal without those materials the Minister made an error of law on the face of the record as to the requirements of an appeal under s 94(3) of the Act. These grounds rely upon a conclusion that the decision of the Warden or the materials before the Warden are materials necessary to determine the appeal or that the decision and the materials are relevant considerations that the Minister must take into account before determining the appeal.
74 Section 94(3) provides that an appeal by an applicant for a miscellaneous licence is to be made in the manner prescribed. Regulation 91 provides that the appeal is to be in the form of a submission in writing and that the Minister may obtain such further information in writing from any other party to the matter and from any other sources as the Minister sees fit in the determination of the appeal.
75 The Act does not expressly state what materials that the Minister must have before him or her before deciding an appeal or what considerations the Minister is required to take into account. These matters are to be ascertained by consideration of the relevant provisions of the Act, in particular the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Mason J at 40; Re Minister for Resources ; Ex parte Cazaly [2007] WASCA 175; (2007) 34 WAR 403 [69] Buss JA.
76 Not every consideration that a decision maker is required to take into account will justify the court setting aside a decision if the decision maker fails to take it into account. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd Mason J at 40. It follows in my view that even if the Minister in considering the appeal was required to have regard to the Warden’s reasons and the evidence before the Warden Forrest & Forrest cannot succeed on these grounds simply by showing that the full text of the reasons and every piece of evidence before the Warden were not before the Minister. The matters that were not before the Minister must have been matters that were relevant to the Minister's decision in the sense that they could have materially affected the decision.
77 The primary object of the Act is to encourage, promote and regulate the exploration for and mining of mineral deposits in the State: Commonwealth v Western Australia (1999) 196 CLR 392 [172] Kirby J; Re Minister for Resources ; Ex parte Cazaly [70] Buss JA; St Barbara Ltd v Minister for Energy Resources, Industry & Enterprise [2008] WASCA 248 [22] Stetyler P. This primary object is sought to be carried out by making available tenements subject to reasonably stringent conditions: Nova Resources NL v French (1995) 12 WAR 50 (57 - 58) Rowland J; Re Minister for Resources; Ex parte Cazaly [70] Buss JA.
78 As I have said, prospecting licences and miscellaneous licences are granted by the mining registrar or warden. In each case an applicant for the licence has a right of appeal to the Minister against the refusal of an application or the grant of a licence on conditions which the applicant considers unreasonable: s 56 (1) and s 94(3).
79 In Hunter Resources Ltd v Melville (1988) 164 CLR 234 Toohey J said at 238, of an appeal to the Minister against a refusal to grant a prospecting licence, that the Minister's powers on appeal are not expressed to be qualified, but this is not to suggest that the Minister may act in an arbitrary manner. In my view the same can be said of an appeal against a refusal to grant a miscellaneous licence. The Minister's appeal jurisdiction is a jurisdiction to determine the application afresh. In exercising that jurisdiction evidence that was before the Warden and findings made by the Warden that are relevant to the encouragement, promotion and regulation of the exploration for or mining of mineral deposits are relevant considerations which are to be taken into account by the Minister.
80 Simply because the full text of the Warden's reasons and every piece of evidence before the Warden were not before the Minister does not mean that the Minister did not have before him and so failed to take into account relevant considerations. It is necessary to consider whether relevant conclusions and materials were before the Minister. It is Forrest & Forrest's case that the Minister did not have before him the Warden's decision that Onlsow Resources had not in the past complied with conditions imposed on mining tenements and was not likely to comply with conditions imposed on the tenement applied for and the materials upon which that decision was based. Onslow Resources submits that as a matter of substance all of the parts of the decision of the Warden upon which Forrest & Forrest relies were before the Minister .
81 As I have noted in Onslow Resources v Forrest & Forrest (No 2) Warden Maughan referred to Warden Tavener's findings in Forrest & Forrest Pty Ltd v Onslow Resources Ltd that Onslow Resources had failed to comply with tenement conditions and that Mr Slater believed he was under no obligation to do so if costs were to be incurred. Warden Maughan found that Onslow Resources had failed to comply with the remediation condition after forfeiture of L08/51 and that he had little confidence and could not see how the Minister could be confident that Onslow Resources' attitude towards compliance with its obligations would ameliorate if the miscellaneous licence was granted.
82 In my view these are relevant considerations to which the Minister was required to have regard as they relate directly to the purpose of the Act.
83 In the briefing note dated 21 March 2016 the Minister was referred to Onslow Resources' letters of 17 November 2015 and 19 November 2015 and to Forrest & Forrest's submissions contained in Mizen + Mizen's letters of 9 December 2015 and 4 February 2016, all of which were before the Minister. These letters and the attachments to Mizen + Mizen's letters contained extensive references to the findings of Warden Maughan and the evidence before him.
84 The findings of the Warden adverse to Onslow Resources were also referred to in Mizen + Mizen’s letter of 4 February 2016. Mizen + Mizen's letter of 9 December 2015 referred to paragraphs of the Warden's reasons, which the Minister did not have before him, however the conclusions of the Warden are summarised in that letter.
85 The briefing note referred, in the comment by the Department, to the forfeiture having sterilised stockpiles. This was a reference to the submissions of Onslow Resources that on the forfeiture of L08/51 it no longer had access to M08/458. This was a matter of contention. It was Forrest & Forrest's position that Onslow Resources had access to M08/458 through other tenements held by Mr Slater. However the Warden, at [33], had noted that Mr Slater's evidence was that access through those tenements would be uneconomic as it would require the construction of a 25 km dirt road, as opposed to 300 m through L08/51. The Minister did not have the Warden's reasons before him, but having regard to that evidence I do not consider the comment in the briefing note is inaccurate. Further, in the letter 17 November 2015 Onslow Resources had described M08/458 as landlocked in the second reason for appeal. Forrest & Forrest's comment on this issue in Mizen + Mizen's letter of 4 February 2016 was limited to reference to the evidence before the Warden that Onslow Resources had not continued negotiations with Forrest & Forrest about access to M08/458. Forrest & Forrest had the opportunity to address this point in its letter of 4 February 2016. The fact that it chose not to do so tends to confirm that it did not regard the issue as one of significance in the appeal to the Minister.
86 Senior counsel for Forrest & 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 + Mizen's letters of 9 December 2015 and 4 February 2016. Forrest & Forrest has not demonstrated that he did not have regard to it.
87 Forrest & 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.
Ground 1(c)
88 By ground 1(c) Forrest & Forrest contends that the Minister denied it procedural fairness by considering and determining the appeal 'other than in an obvious and natural way' without notifying Forrest & Forrest or affording it an opportunity to be heard as to the absence of the decision or materials before him. Forrest & Forrest contends that:
1. Procedural fairness required the Minister to read and consider reasons for the decision of Warden Maughan to refuse application L08/143;
2. Both parties proceeded on the basis that the Minister would read the Warden's decision and look at the materials that were before the Warden;
3. At no point did the Minister inform the parties that he would not be looking at the Warden's decision or the materials before the Warden;
4. Forrest & Forrest was denied procedural fairness by the Minister failing to provide it with a copy of the briefing note; and
5. The briefing note distorted the issues and was not balanced because it did not inform the Minister of the actual evidence before the Warden, did not contain a proper account of Forrest & Forrest's argument before the Warden, did not address the absence of evidence before the Warden that the forfeiture of L08/51 and the refusal of L08/143 had delayed the Wheatstone project, did not subject Mr Slater's assertions about delaying the Wheatstone project to any analysis, did not inform the Minister of the decision of Warden Tavener to order the forfeiture of L08/51 and did not properly inform the Minister as to why L08/51 had been ordered to be forfeited.
89 Procedural fairness is implied as a condition of the exercise of a statutory power through the application of a common law principle of statutory interpretation. That principle is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the statutory scheme: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 90 ALJR 901 [75].
90 Compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power. The implied condition is breached if the procedure adopted so constrains the opportunity of the person to propound his or her case for a favourable exercise of the power as to amount to a practical injustice: Minister for Immigration and Border Protection v SZSSJ [82].
91 Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of the nature and purpose of the inquiry, the issues to be considered in conducting the inquiry and the nature and content of information that the repository of power might take into account as a reason for coming to a conclusion adverse to the person: Minister for Immigration and Border Protection v SZSSJ [83].
92 The provisions of the Mining Act do not displace the implication of procedural fairness as a condition of the determination of an appeal under s 94(3) of the Act. As the holder of the pastoral lease on which L08/143 would lie if granted Forrest & Forrest's interests would be affected if the mining tenement was granted. It was entitled to be afforded procedural fairness when the Minister determined Onslow Resources' appeal.
93 Forrest & Forrest was aware of the nature and purpose of the Minister's consideration of Onslow Resources' appeal. It was provided with the Onslow Resources' letters of 17 and 19 November 2015 to the Minister which contained Onslow Resources' case to the Minister as to why the appeal should be allowed. It was able to respond to that case, as it did by its letters of 9 December 2015 and of 4 February 2016.
94 It is clear that if he wished to do so the Minister could have obtained a copy of Warden Maughan's reasons for decision and of the evidence before the Warden. The fact that he chose not to do so and did not inform Forrest & Forrest that he was not doing so does not mean that Forrest & Forrest was not put on notice of the nature and purpose of the appeal, the issues to be considered by the Minister in conducting the appeal and the nature and content of information that the Minister might take into account as a reason for allowing the appeal. Forrest & Forrest was aware of these matters. It made submissions as to why the appeal should not be allowed. In my view the facts that the Minister did not have before him a copy of the Warden’s reasons for decision or of the evidence before the Warden and that he did not inform Forrest & Forrest that he did not have this material did not constitute a failure to afford Forrest & Forrest procedural fairness even though Forrest & Forrest thought that he did have that material before him. That is because Forrest & Forrest knew the nature and purpose of the appeal, the issues to be considered by the Minister in conducting the appeal and the nature and content of information that the Minister might take into account as a reason for allowing the appeal because it knew the case put forward by Onslow Resources as to why its appeal should be allowed.
95 It is also my view that the obligation to afford procedural fairness to Forrest & Forrest did not require him to provide a copy of the briefing note to it. The briefing note was a summary of the submissions of Onslow Resources and Forrest & Forrest with some comment on those submissions. It did not raise any basis for allowing the appeal which Forrest & Forrest had not had the opportunity to address.
96 I do not accept Forrest & Forrest's submissions that the briefing note was not balanced or that it distorted the issues. It contained a summary of the issues. The Minister had before him the parties' submissions. The papers that were before the Minister canvassed the issues that were relevant to the appeal. The fact that he wrote the word 'why' on the briefing note does not mean that the Minister was not provided with the reasons why L08/51 was forfeited. The reasons for that forfeiture appeared later in the same paragraph - Forrest & Forrest lodged on application for forfeiture on the basis that Onslow Resources had breached tenement conditions. The writing of the word is consistent with the Minister making a note to himself on this issue as he was reading the briefing note, to see why L08/51 was forfeited, which appeared later in the note.
97 In my view the Minister did not fail to afford Forrest & Forrest procedural fairness.
Ground 2 – unreasonableness
98 By ground 2 Forrest & Forrest contends that the Minister’s decision to allow the appeal was vitiated by legal unreasonableness. The legislature is taken to intend that a statutorily conferred discretionary power will be exercised reasonably: Minister for Immigration and Citizenship v Li [2013] HCA 332; (2013) 249 CLR 332 [63] Hayne, Kiefel, and Bell JJ. The implication of a requirement of reasonableness as a condition of the exercise of a discretionary power conferred by statute is a manifestation of the general and deeply rooted common law principle of construction that decision making authority conferred by statute must be exercised according to law and reason, within limits set by the subject matter, scope and purposes of the statute: Minister for Immigration and Citizenship v Li Gageler J at [90]. In determining whether there has been compliance with the requirement of reasonableness the courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. The requirement does not involve substituting the court’s view as to how a discretion should be exercised for that of the decision maker: Minister for Immigration and Citizenship v Li Hayne, Kiefel, and Bell JJ at [66]. However the legal standard of unreasonableness should not be considered as limited to irrational or bizarre decisions or decisions that no reasonable person could have arrived at: Minister for Immigration and Citizenship v Li Hayne, Kiefel, and Bell JJ at [68]. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification: Minister for Immigration and Citizenship v Li Hayne, Kiefel, and Bell JJ at [76].
99 Like procedural fairness, to which it is closely linked, a requirement of reasonableness is not implied if it is inconsistent with the terms in which a power or duty is conferred or is otherwise inconsistent with the nature or statutory context of that power or duty: Minister for Immigration and Citizenship v Li Gageler J at [92].
100 The provisions of the Mining Act do not displace the implication of a requirement of reasonableness as a condition of the determination of an appeal under s 94(3) of the Act. There was an implied requirement of reasonableness as a condition of the Minister’s determination of Onslow Resources' appeal.
101 Forrest & Forrest contends that the decision to allow the appeal did not comply with the requirement of reasonableness because under the Mining Act miscellaneous licences are to be granted subject to conditions, the scheme of the Act is to compel compliance with conditions which perform important protective purposes, Warden Tavener had ordered forfeiture of L08/51 by reason of Onslow Resources' breaches of the conditions of that miscellaneous licence, Warden Maughan had found that Onslow Resources had not in the past complied with conditions imposed on mining tenements and was unlikely to comply with conditions imposed on the miscellaneous licence applied for and the Minister took no inquiry to identify a basis to depart from Warden Maughan's finding that Onslow Resources was unlikely to comply with conditions imposed on the miscellaneous licence.
102 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.
103 It follows that Onslow Resources' failure to comply with conditions in the past and the findings of Warden Tavener and Warden Maughan to which Forrest & Forrest has referred were relevant considerations in determining the appeal. These were matters that Forrest & Forrest placed before the Minister in the submissions made by Mizen + Mizen. However the Minister was also entitled to have regard to Onslow Resources' 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 Resources 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.
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