Gold and Copper Resources Pty Limited v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2)

[2014] NSWLEC 30

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Gold and Copper Resources Pty Limited v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30

Hearing dates:

14 - 17 October, 19 December 2013

Decision date:

01 April 2014

Jurisdiction:

Class 8

Before:

Pain J

Decision:

1. The Applicant's Class 8 summons is dismissed.

2. Costs are reserved.

3. Exhibits to be returned.

Catchwords:

JUDICIAL REVIEW - challenge to renewal of exploration prospecting licence - application as required by Mining Act in existence at relevant time - applicant has not proved that Minister's delegate was not satisfied of existence of special circumstances - breach of s 112 based on breach of s 111 of EPA Act not legally available as matter of statutory construction - renewal of exploration prospecting licence not obtained by fraudulent misrepresentation

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 110, s 110E, s 111, s 112, Pt 5
Evidence Act 1995 s 140
Land and Environment Court Rules 2007 r 4.3
Mining Act 1992 s 13, s 16, s 17, s 22, s 32D, s 33, s 41, s 51, s 63, s 87, s 90, s 95, s 113, s 114, s 117, s 130, s 131, s 132, s 135, s 137, s 159, s 293, s 374, s 382
Mining Regulation 2003 cl 56

Cases Cited:

Bailey v Forestry Commission of NSW (1989) 67 LGRA 200
Barrick Australia Ltd v Williams [2009] NSWCA 275; (2009) 74 NSWLR 733
Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Brown v Randwick City Council [2011] NSWLEC 172; (2011) 183 LGERA 382
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2010] NSWLEC 1; (2010) 172 LGERA 25
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2010] NSWCA 353; (2010) 178 LGERA 411
Commercial Banking Company of Sydney Limited v RH Brown & Co (1972) 126 CLR 337
F Hannan Pty Ltd v Electricity Commission of New South Wales [No. 3] (1985) 66 LGRA 306
Fullerton Cove Residents Action Group Inc v Dart Energy Ltd [2013] NSWLEC 38; (2013) 195 LGERA 329
Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155
Goldberg v Waverley Council [2007] NSWLEC 259; (2007) 156 LGERA 27
Gold and Copper Resources Pty Limited v Minister for Resources and Energy [2013] NSWLEC 66
Gold and Copper Resources Pty Limited v The Hon. Chris Hartcher MP, Minister for Resources and Energy, Special Minister of State, Minister for the Central Coast [2013] NSWLEC 166
Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353; (1986) 61 LGRA 401
Hurstville City Council v Minister for Planning and Infrastructure [2012] NSWLEC 134; (2012) 189 LGERA 269
Jarasius v Forestry Commission of NSW (No 1) (1990) 71 LGRA 79
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Khan v Minister for Immigration, Local Government and Ethnic Affairs (Federal Court, 11 December 1987, unreported)
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Martin v State of New South Wales (No 14) [2012] NSWCA 46
Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Conygnham (1986) 68 ALR 441
Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz [1992] FCA 71; (1997) 34 FCR 348
NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (No 2) [2011] NSWLEC 98
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171
Oshlack v Rous Water (No 2) [2012] NSWLEC 111; (2012) 189 LGERA 243
Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia [2012] HCA 25; (2012) 289 ALR 1
SAS Trustee Corporation v Woollard [2014] NSWCA 75
Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87
Sustainable Fishing and Tourism Inc v Minister for Fisheries [2000] NSWLEC 2; (2000) 106 LGERA 322
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189
Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598
Vilro Pty Ltd (in voluntary liquidation) v Roads and Traffic Authority [2010] NSWLEC 234; (2010) 179 LGERA 47
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707

Texts Cited:

Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, (5th ed 2013, Thomson Reuters)
Harry Woolf, Jeffrey Jowell, Andrew Le Sueur, Catherine Connelly and Ivan Hare, De Smith's Judicial Review, (7th ed 2013, Sweet & Maxwell)

Category:

Principal judgment

Parties:

Gold and Copper Resources Pty Limited (Applicant)
The Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (First Respondent)
Newcrest Operations Limited (Second Respondent)

Representation:

Mr T Alexis SC with Ms A Hemmings (Applicant)
Mr T Hale SC with Mr T Waterson (First Respondent)
Mr I Jackman SC with Mr S Laurance (Second Respondent)
Hones La Hood (Applicant)
Crown Solicitor's Office (First Respondent)
Allens Linklaters (Second Respondent)

File Number(s):

80869 of 2012

Judgment

1. The Applicant Gold and Copper Resources (GCR) challenges the renewal of an exploration prospecting licence (EPL) by Hon Chris Hartcher MP, the Minister for Resources and Energy, Special Minister (the Minister) through his delegate, Mr New, to the Second Respondent Newcrest Operations Limited (Newcrest) in 2009. The Court has jurisdiction to determine the matter under s 293(1)(q)(ii) of the Mining Act 1992 subject to the operation of the privative clause in s 137 of the Mining Act. The proceedings are in the nature of judicial review.

1. The amended summons seeks a declaration that the renewal is void and of no effect, inter alia. In the course of case preparation and argument during the hearing the grounds of appeal were narrowed to four so that all of the grounds articulated in the Further Amended Points of Claim (FAPOC) were not pressed. At issue is the receipt from Newcrest and processing and assessment in the Department of Primary Industries (the Department) of an application to renew EPL 1024 in 2009, ultimately granted by the Minister's delegate Mr New on 8 October 2009 for a five year period over the same area of land (six units) as previously. EPL 1024 was renewed for five years in 2004.

1. While this Court is not a court of strict pleading, detailed FAPOC have been filed which usefully articulate GCR's case. GCR bears the onus of proof of establishing its grounds of review on the balance of probabilities. One ground alleges fraudulent misrepresentation, to which the firmer Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 test must apply.

Mining Act as in force in 2009

1. Definitions in Dictionary:

approved means approved by the Minister.

authority means an exploration licence, an assessment lease or a mining lease.

exploration licence means an exploration licence granted under Part 3.

prospect means to carry out works on, or to remove samples from, land for the purpose of testing the mineral bearing qualities of the land, but does not include any activity declared not to be prospecting by a regulation under section 11A.

prospecting operations means operations carried out in the course of prospecting.

1. Part 3 of the Mining Act deals with exploration licences. Section 13 is concerned with applications for exploration licences. Under s 16 the Minister may require the applicant to furnish further information in connection with an application. Under s 17 the Minister may direct that any part of the land to which an application relates be excluded from the application with such a direction allowing the tenderer to amend the tender by written notice. Under s 22, after considering an application for an exploration licence, the Minister may grant or refuse the application. Section 32D deals with applications for low impact exploration licences.

1. Part 4 deals with assessment leases. Section 33 concerns applications for assessment leases. Under s 41 the Minister, after considering an application for an assessment lease, may grant or refuse the application.

1. Part 5 deals with mining leases with s 51 covering applications for mining leases. Under s 63 the Minister, after considering an application for a mining lease, may grant or refuse the application. Part 6 deals with the consolidation of mining leases with s 87, s 90 and s 95 concerning amendments to proposed leases.

1. Part 7 Renewal, transfer and cancellation of authorities applies to EPL 1024.

Division 1 Renewal of authorities

113 Applications for renewal

(1) The holder of an authority may, from time to time, apply for the renewal of the authority.

(2) An application for the renewal of an exploration licence or assessment lease must be lodged with the Director-General not earlier than 2 months and not later than 1 month before the licence or lease ceases to have effect.

(3) An application for the renewal of a mining lease must be lodged with the Director-General not earlier than 5 years and not later than 1 year (or, if the term of the mining lease is for 1 year or less, not earlier than 2 months and not later than 1 month) before the mining lease ceases to have effect.

(4) An application for the renewal of an authority must be accompanied by the appropriate lodgment fee.

(5) If an application for the renewal of an authority is in respect of part only of the land subject to the authority, the application must be accompanied by a description, prepared in the manner prescribed by the regulations, of the land over which renewal of the authority is sought.

(6) An application for the renewal of an exploration licence may be made in respect of one or more parts (but not more than such number of parts as may be prescribed by the regulations) of the exploration area.

(7) An application for the renewal of an assessment lease or a mining lease may be made in respect of the whole, or of any single part, of the assessment area or mining area.

(8) To avoid doubt, the holder of an exploration licence may apply for and be granted a renewal of the licence even if the holder is an applicant for or is granted an assessment lease or a mining lease with respect to some or all of the land in the exploration area.

114 Power of Minister in relation to applications

(1) After considering an application for the renewal of an authority, the Minister:

(a) may renew the authority, or

(b) may refuse the application.

(2) Without limiting the generality of subsection (1), an application may be refused if the applicant has been convicted of an offence against this Act or the regulations or any other offence relating to mining or minerals.

(3) The period for which an authority is renewed may not on any one occasion exceed:

(a) 5 years in the case of an exploration licence or assessment lease, or

(b) 21 years (or such longer period as the Minister may, with the concurrence of the Premier, determine) in the case of a mining lease.

(4) On renewing an authority, the Minister may amend any of the conditions of the authority and may include further conditions in the authority.

(5) The area of land over which an authority is renewed may differ from the area of land over which the renewal of the authority is sought, but not so as to include any land that was not subject to the authority immediately before the renewal.

(6) The number of units over which an exploration licence may be renewed is not to exceed half the number of units over which the licence was in force when the application for the renewal was made unless the Minister is satisfied that special circumstances exist that justify the renewal of the licence over a larger number of units.

(7) The Minister may defer dealing with an application for the renewal of a mining lease over any land if the mining lease is the subject of action being taken under Part 6 in connection with the granting of a consolidated mining lease over that land.

117 Authority to have effect until application dealt with

(1) If an application for the renewal of an authority is not finally dealt with before the date on which the authority would otherwise cease to have effect, the authority continues to have effect, in relation only to the land to which the application relates, until the application is finally disposed of.

(2) While an authority has effect under this section, the Minister may amend any of the conditions of the authority (other than a condition relating to royalty).

(3) An amendment takes effect on the date on which written notice of the amendment is served on the holder of the authority or on such later date as may be specified in the notice.

130 Withdrawal of application

(1) An application or objection in relation to the grant, renewal, transfer or cancellation of an authority may be withdrawn by means of a notice of withdrawal signed by the applicant or objector and lodged with the Director-General and ceases to have effect when the notice is lodged.

(2) The withdrawal of an application or objection under this section is irrevocable.

131 Pending applications

For the purposes of this Act, an application for an authority is pending from the time it is lodged until the time it is finally disposed of.

132 Disputes as to priority of applications

Any dispute as to the priority of competing applications for authorities over the same land is to be determined by the Minister.

135 Waiver of minor procedural matters

(1) The Minister may grant or renew an authority even though the applicant has failed to comply with a requirement of this Act or the regulations:

(a) as to the time within which anything is required to be done, or

(b) as to the details to be contained in any notice served, lodged or caused to be published by the applicant, or

(c) as to the particulars to accompany any application, or

(d) as to the furnishing of declarations and other information by the applicant.

(2) This section does not authorise the Minister to grant or renew an authority in the case of an applicant who has failed to comply with such a requirement unless the Minister is satisfied that the failure is unlikely:

(a) to adversely affect any person's rights under this Act or the regulations, or

(b) to result in any person being deprived of information necessary for the effective exercise of those rights.

382 Applications and tenders generally

(1) An application or tender under this Act must be in or to the effect of the approved form.

(1A) If an approved form requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to it or furnished with it, that information.

(2) An application or tender that is required to be lodged with a person must be so lodged in such manner, and during such times, as may be prescribed by the regulations but may, if the regulations so provide, be lodged with some other person.

Mining Regulation 2003 as in force in 2009

1. The definition section of the Mining Regulation 2003 (now repealed) (Mining Regulation) provided:

approved form in relation to an application, means the form approved for the application under section 382 of the Act.

1. Clause 56(2) provided:

56 Applications generally

(1) An application under the Act may be lodged either in person, by facsimile or by post. An application for an exploration licence may also be lodged electronically as provided by subclause (9).

(2) An application that is required to be lodged with the Director-General may be lodged instead with any other person that the Director-General may from time to time nominate as a person who may receive such an application.

(3) An application that is required to be lodged with a mining registrar may be lodged instead with any other person that the mining registrar may from time to time nominate as a person who may receive such an application.

(4) An application that is lodged in person with the Director-General or any other person nominated under this clause may be lodged on any day (other than a Saturday, Sunday or public holiday) between the hours of 9.30 am and 4.00 pm.

(5) An application that is lodged in person with a mining registrar or any other person nominated under this clause may be lodged on any day (other than a Saturday, Sunday, public holiday or other day on which the mining registrar's office is closed) between the hours of 9.30 am and 4.00 pm.

(6) An application that is lodged in person is to be endorsed, by the person with whom it is lodged, with the date and time of its lodgment.

(7) If an application is lodged by post, the application is presumed to have been lodged at 9.30 am on the day on which it is received.

(8) If an application is lodged by facsimile and the receiving facsimile machine records its receipt at a particular date and time, the application is presumed to have been lodged at that time on that date.

...

(12) If an application is required to be accompanied by a fee, the application is presumed to have been lodged:

(a) in the case of an application that is lodged in person, at the time and date of payment of the fee or at the time and date of lodgment of the application, whichever is later, or

(b) in the case of an application that is lodged by mail, at the time and date of payment of the fee or at 9.30 am on the day on which the application is received, whichever is later, or

(c) in the case of an application that is lodged by facsimile, at the time and date of payment of the fee or at the time and date that the application's receipt is recorded, whichever is later, or

...

1. It is agreed that the Form 9 application for renewal used by Newcrest in 2009 was an approved form as defined in the Mining Regulation.

Evidence

1. The Department of Trade and Investment (formerly the Department of Primary Industries) (the Department) (as shown in exhibit 2) includes the Mineral Resources branch which consists of four branches including Geological Survey and the Minerals Operations Branch. The Minerals Titles Branch (Titles Branch) is a subset of the Minerals Operations Branch. The structure of the Department informs the context of the documents tendered by the parties. The parties did not dispute that the structure of the Department as depicted in exhibit 2 broadly reflects what existed in 2009. The Titles Branch has two team leaders, one of whom is Mr New, Team Leader Mineral Titles Western. Mr McDonald, Western Region Titles is also part of the Titles Branch. Within Geological Survey is Mineral Exploration Assessment. Mr Capnerhurst, Manager Minerals and Land Use, and Mr Wood, principal geologist in exploration assessment, are part of Mineral Exploration Assessment.

1. The documents tendered by the Minister consisted of a copy of the Titles Branch file T94/1892 (exhibit 1). The Minister also tendered an organisational chart of the Resources and Energy Mineral Resources Branch, Department of Trade and Investment 2013 (exhibit 2). GCR's bundle of documents (exhibit A) contained documents discovered by Newcrest (section A), documents discovered by the Minister from files other than the Titles Branch file (section B), part of the Titles Branch file otherwise in exhibit 1 (section C), policy and procedure documents of the Department (Five year terms for Exploration Licences dated 18 May 1993, Policy on Renewal of Exploration Licences for Minerals effective 1 November 2004 printed 14 August 2013, Procedure Manual - Renewals of Exploration Licences and Associated Matters revision March 2006, Nomination of Persons to Receive Applications dated 10 July 2006 and Exploration Licence Renewals primefact 28 July 2005) (section D). GCR also tendered an organisational chart of the Department of Primary Industries as at 2008 (exhibit B), a Title Dealing Enquiry concerning EPL 1024 dated 8 October 2013 (exhibit C) and an instrument of delegation dated 8 December 2004 (exhibit D). GCR also tendered documents concerning the renewal of EL 3856 in 2004 (exhibit E).

1. Newcrest tendered the instrument of renewal with the conditions (exhibit 1A), the gazettal notice of the renewal (exhibit 2A), a document showing the exploration licences considered by the Exploration Titles Committee (ETC) on 6 October 2004 (exhibit 3A), mineral exploration assessment reports (exhibit 4A), a confidential annual report (exhibit 5A) and three GCR applications over land of EPL 1024 (exhibit 6A).

1. Mr Lewis swore an affidavit dated 29 September 2013 read by GCR. Between 2004 and 2008 Mr Lewis was the Assistant Director, Minerals & Land Use. A former mines department officer who spent some 22 years in the Department until 2008 he purported to give evidence about the practice and procedure in the Department in relation to the consideration of applications by the ETC and the subsequent approval by the delegate on behalf of the Minister. He had not been such a delegate. He chaired the ETC on several occasions. He stated that from his experience he is aware as a matter of practice and procedure that absent a recommendation from the ETC or directly from the responsible Minister a licence or renewal would not be approved or renewed. The delegate made the decision but that decision was the implementation of the recommendation made by the ETC. He is not aware of any instance where the Minister's delegate made a different decision to the recommendation made by the ETC. Following an ETC meeting a minute paper of the decision of the ETC relating to individual titles was prepared. The signed ETC minute paper was then sent to the Minister's delegate who in due course would sign the renewal instrument assuming that the ETC had approved and recommended that the renewal was to occur.

1. Mr Lewis was cross-examined. He was shown the special circumstances renewal document for five years and confirmed that it contains information relevant to someone with geological expertise which would require the views of Mineral Exploration Assessment (TS 88). Mr Lewis could not recall the number of ETC meetings he attended in 2004, 2005, 2006 and 2007. During the course of ETC meetings the ETC made recommendations for the chairperson to consider. The secretary would circulate the minutes to those who attended the ETC meeting for them to check their veracity. Once Mr Lewis had certified that the minutes were correct his involvement with that particular committee meeting ended (TS 90). Since leaving the Department Mr Lewis has been providing consultancy services to GCR which occupies approximately 50 per cent of his work. This relationship has not influenced his evidence (TS 91, 94). Mr Lewis stated that he and ETC members could have had access to the Titles Administration System (TAS) if they asked for it (TS 91). GCR would have had access to the TAS since at least 2009 through their consultant Mr Hetherington's company (TS 93).

1. Mr Harris, an officer of the Department, affirmed an affidavit dated 4 October 2013. He outlined the Department's electronic TAS. The Department has established the TAS to fulfil the requirements under s 159 of the Mining Act and the associated regulations that require a record to be kept of every application for an authority and every authority that is granted, renewed, transferred or cancelled under the Mining Act. The Department has accessed TAS accounts for many participants in the NSW mining industry. By accessing the TAS, the holder of a TAS account can access detailed information about the grant and renewal of an authority including the dealing status of the application. The information on the TAS is regularly updated by the Department.

1. Mr Harris was cross-examined. He stated that almost certainly members of the ETC would have had access to the TAS in 2009 (TS 118). If anyone wanted access to the TAS, they could get it (TS 119). For dealings in the TAS acronyms are used which are APP for application, REN for renewal and MSC for miscellaneous which is a catch all dealing (TS 120). It was outside Mr Harris' expertise to know whether a miscellaneous dealing would be entered if the sought expiry date is subsequently changed from that initially sought (TS 120). If a clerical error is made a new dealing is not always entered (TS 126). If draftsmen make mistakes concerning the number of areas covered this is checked against the renewal application (TS 127).

Background facts

1. At a broad level the background facts relevant were not in dispute. The parties agreed a useful chronology relevant to the first two grounds of review as follows:

Date	Event	Document Ref
19.4.04	Newcrest lodged a Form 9 application to renew EPL 1024 for a two year period.	Ex. 1, p 125
6.10.04	The ETC requests renewal of EPL 1024 for a five year period.	Ex. 1, p 102, 103, 104. Exhibit 3A
1.12.04	EPL 1024 renewed for a further (five year) term until 20 May 2009.	Ex. 1, p 82
27.3.09	Newcrest lodged with the Department an application for renewal of EPL 1024 (by letter dated 24 March 2009), enclosing a Form 9 'Application for Renewal of Exploration Licence', special circumstances submission and credit card payment details and certifies all of the particulars required to accompany the application have been supplied and were correct.	Ex. A, p 1 Ex. A, p 66 Ex 1, p 60
27.3.09	Mr New, the Minister's delegate, checked the renewal application ('dealing') lodged by Newcrest.	Ex. 1, p 46
27.3.09	Details of the application were entered into the Department's Titles Administration System (TAS). The two year term sought was entered as 20 May 2011.	Ex. 1, p 55 and p 53
27.3.09	Mr McDonald acknowledged receipt of the renewal application of EPL 1024 and the renewal application of EL 3856 by letter to Ms Lisa Bowyer.	Ex. 1, p 52
30.3.09	Memo from Mr McDonald to Geological Survey (MEA) noting renewal application was received for 24 months	Ex. 1, p 51
13.5.09	Part 5 determination was made.	Ex. 1, p 12-14
20.5.09	Ms Bowyer sent a new page 1 of Form 9 'Application for Renewal of Exploration Licence' to Mr Capnerhurst "as requested."	Ex. A, p 16 Ex. A, p 39
20.5.09	Mr Capnerhurst replied to Ms Bowyer's email of 20 May 2009 with the words "Thanks Lisa."
25.5.09	Ms Bowyer (Newcrest) sent a new '"special circumstances submission" to Mr Capnerhurst "as requested." Mr Capnerhurst replied to Ms Bowyer on 27 May 2009 with words "Thanks Lisa, I will attach these to the renewal document."	Ex. A, p 19 Ex. A, p 42
6.09	Newcrest lodged its annual report on mineral exploration for the twelve months to 20 May 2009 for EPL 1024 and other exploration licences with the Department.	Ex. 5A (Confidential Exhibit), p1
2.6.09	Department minute paper was prepared by Mr Capnerhurst. A 60 month renewal was supported.	Ex. 1, p 48
2.6.09	Recommendation made by Mr Wood (documented on electronic file) that special circumstances renewal be granted.	Ex. A, p 54
2.6.09	Departmental Mineral Exploration Assessment Reports created.	Ex. 4A
25.6.09	Departmental Mineral Exploration Assessment Report created. Department recorded receipt of Newcrest's Annual Report for the period to 20 May 2009.	Ex. 4A
30.6.09	Mr Wood indicated support for special circumstances renewal of EPL 1024 (hand-written endorsement on minute paper of 2.6.09).	Ex. 1, p 48
3.7.09	A Department minute paper prepared by Mr McDonald recommended special circumstances renewal of EPL 1024 for five years. Mr New, the Minister's delegate, supported the recommendation on 7.7.09.	Ex. 1, p 42 and p 43
16.7.09	The ETC, of which Mr New was a member, considered the renewal of EPL 1024, and recommended special circumstances renewal for five years.	Ex. 1, p 40
4.8.09	Newcrest lodged its interim report on exploration with the Department.	Ex. A, p 57
25.8.09	Department sent the Instrument of Renewal to Newcrest for execution.	Ex. 1, p 21
21.9.09	Newcrest returned the executed Instrument of Renewal to the Department.	Ex. 1, p 19
8.10.09	The Minister's delegate, Mr New, executed the Instrument of Renewal on behalf of the Minister, and EPL 1024 was renewed for a further (five year) term until 20 May 2014.	Ex. 1, p 6
15.10.09	The TAS dealing for EPL 1024 was updated to reflect the grant of EPL 1024 on 8.10.09. The TAS system records the term of renewal sought as 20 May 2011.	Ex. 1, p 8 and p 9
4.12.09	Notice of renewal of EPL 1024 published in the Gazette.	Ex. 2A
15.3.11	GCR lodged competing Exploration Licence Applications, ELA 4201 and 4403 over EPL 1024 (and EL 3856).	Ex. 6A
21.11.11	Mr Capnerhurst forwarded by email to both Mr McDonald and Mr New, the five year special circumstances submission sent to him by Ms Bowyer on 25 May 2009.	Ex. A

Ground 1 No application for renewal of EPL 1024

1. The FAPOC state as follows for this ground:

40. On 20 May 2009 Newcrest sent to Kevin Capnerhurst, an employee of the Department in its Geological Survey Unit, an email that attached a new first page of the Form 9 "Application for renewal of an exploration licence" of the Renewal Application, which sought inter alia renewal of EPL 1024 for five years (the new first page).

Particulars

Email from Lisa Bowyer to Kevin Capnerhurst entitled "EL 3856, EPL 1024 - renewal amendment" transmitted at 3.37 pm.

41. On or about 20 May 2009 the first page of the Form 9 comprising the Renewal Application received by the Department on or about 27 March 2009 (the old first page) was removed from the Renewal Application and was destroyed and the new first page was attached to the remaining part of the Renewal Application.

Particulars

The Renewal Application discovered by the First Respondent in the verified List of Documents dated 2 August 2013, comprises the new first page attached to the remaining part of the Renewal Application. The First Respondent has not discovered the old first page.

42. The effect of removing the old first page from the Renewal Application on or about 20 May 2009, destroying the old first page and substituting the old first page for the new first page, was to:

(a) destroy the Renewal Application, such that there was no application for the renewal of EPL 1024; or

(b) render the Renewal Application invalid, as the Renewal Application was not complete without the old first page; or

(c) alternatively, render the Renewal Application invalid, as the Renewal Application containing the new front page was not certified as correct; or

(d) withdraw the Renewal Application and replace the Renewal Application with the new first page attached to the remaining part of the Renewal Application, such that the application for the renewal of EPL 1024 for five years was made on 20 May 2009.

Particulars

(i) There was no power under the Mining Act to amend or vary or supplement the Renewal Application on 20 May 2009, by substituting the old first page for the new first page. [amendment not relied on by Respondents]

(ii) The Renewal Application without the old first page or the application for the renewal of EPL 1024 for five years made on 20 May 2009 (comprising the new first page attached to the remaining part of the Renewal Application) did not comply with section 382 of the Mining Act.

(iii) The application for the renewal of EPL 1024 for five years made on 20 May 2009 (comprising the new first page attached to the remaining part of the Renewal Application) was not lodged with the Director-General within the time prescribed by section 113(2) of the Mining Act.

43. Further and at all material times, Mr Capnerhurst was not a person nominated by the Director-General to receive the application for the renewal of EPL 1024, within the meaning of regulation 56 of the Mining Regulation 2003 and was not authorised to receive the new first page.

Particulars

"Nominations of Persons to Receive Applications" for the purpose of regulation 56(2) of the Mining Regulation executed by the Director-General and dated 10 July 2006.

44. By reason the matters pleaded in the preceding paragraph, the application for the renewal of EPL 1024 was not received by, or lodged with, either the Director General or a person authorised to receive it, in breach of sections 113 and 382 of the Mining Act.

45. In the premises, there was no application for the renewal of EPL 1024 within the meaning of section 114(1) of the Mining Act and the Renewal was invalid and is of no force or effect.

1. In terms of the factual matters referred to in par 41 of the FAPOC, the Minister did not dispute that the original first page of the Form 9 application for renewal seeking a two year extension sent by Ms Bowyer of Newcrest on 27 March 2009 to the Department is not on the departmental files. It has not been discovered by the Minister during these proceedings. A copy of that original first page of the completed Form 9 was discovered from Newcrest (as articulated in par 41 FAPOC). While par 41 of the FAPOC asserts the original first page was destroyed there is no evidence about that. No departmental officer referred to in the FAPOC (Messrs Capnerhurst, McDonald and New) has given evidence. Whether destroyed or not, its (accepted) absence from the departmental file is a material fact underlying GCR's case in this ground of review.

1. The relevant events are identified in the chronology above. It is accepted by the Minister that the Form 9 application sent by Newcrest was an approved form. The Instructions for Completing Form 9 in exhibit A state:

Requirements for processing an Application

Applications for renewal of exploration licences require the completion of Form 9. Form 9 must not be altered and completed in accordance with the instructions below and must be lodged with the required fee and other accompanying material. Additional material to assist you to complete this application is available on the DPI website. (Minerals/Titles/Information Fact Sheets/Exploration Licence Renewals).

Applications may be lodged either in person, by facsimile, or by mail at one of the Department's offices at Maitland, Orange, Singleton, Wollongong and Lightning Ridge. The Exploration Licence Renewal Information Fact Sheet lists the location and other relevant details of Departmental offices.

...

Completion of the Form

It is essential that the form is properly completed and accompanied by the required material.

GCR's submissions

1. As the first page of the original Form 9 application lodged by Newcrest in March 2009 was removed and, by inference, destroyed there was no application filed within time which could be approved by the delegate Mr New. It is accepted by the Minister that the form was an approved form for the purposes of the Mining Act. Section 382(1) requires an application under the Mining Act to be in or to the effect of the approved form and informs the operation of s 113 and s 114. The object of strict compliance with the form in s 382 is to promote certainty in the granting and renewal of mining authorities. The Instructions for Completing Form 9 state the need for compliance clearly (exhibit A s D tab 6 p 127-129).

1. The removal of the first page and its replacement destroyed the renewal application so that no application capable of being determined was in existence after 20 May 2009. The application was rendered invalid as it was not complete without the new first page. The renewal application contained the new front page which was not certified as correct by Ms Bowyer as required by s 382 of the Mining Act. Absent strict compliance with s 382 the Form 9 was not duly completed as required by s 382 from 20 May 2009.

1. Neither the Minister nor his delegate had power to accept a varied or amended application for renewal under s 113 of the Mining Act. The source of power for renewal of an exploration licence rests solely in s 114(1) and it does not so permit. The structure of the Mining Act places clear emphasis on the importance of an application in several contexts in that Act. The Minister's determination under s 114 depends on the receipt of an application. The strict time limits for renewal in the Act suggest there is no implied authority to amend or permit amendment (nor is this submitted by the Respondents).

1. The statutory scheme provided for in the Mining Act relies on applications being lodged and considered by the Minister and does not discriminate between an application that is required by s 113(2) and complies with s 382 and "an application" to be considered by the Minister or a delegate under s 114(1). They must be the same. Section 135 makes this plain because the discretion to waive minor procedural matters relates to time and particulars to accompany any application inter alia, and does not relate to the mandated requirement for the duly completed form.

1. The new first page was received by a person not authorised to do so pursuant to cl 56(2) of the Mining Regulation, Mr Capnerhurst. The new first page is therefore deemed not to have been received.

1. Alternatively, the renewal application was effectively withdrawn by the removal of the original first page of the renewal application, that is a constructive withdrawal. No notice of withdrawal as provided for in s 130 was received by the Department.

1. The reasoning of the High Court in Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia [2012] HCA 25; (2012) 289 ALR 1 applies by analogy. The Chief Justice at [31] in considering whether the Industrial Relations Commission had jurisdiction to entertain an appeal from a commissioner held that the finding there was no industrial dispute was a matter which the commission had jurisdiction to decide as an essential preliminary to the exercise of its substantive jurisdiction. This is analogous to Mr New exercising his delegated power under s 114(1) of the Mining Act, the question notionally before him being whether or not there was an application under the Act for him to consider. Martin v State of New South Wales (No 14) [2012] NSWCA 46 is distinguishable as the failure to supply proper particulars of the applicant's financial resources and its program of works (the deficiencies) did not relate to the existence of the duly completed form under s 382.

1. As the Minister's delegate did not consider the duly completed application form with respect to the renewal of EPL1024 on 8 October 2009 it follows that the pre-condition to the exercise of the power to renew under s 114(1) did not exist and the renewal was invalid.

Minister's submissions

1. An application must be in physical form (written), as contemplated by s 382. There is no legal consequence if that form is destroyed, for example by fire or a coffee spill. Once lodged there is an application regardless of any change to the physical form. This is supported by s 117 and s 130.

1. Section 130 does not provide for informal or implied withdrawals such as that contended for by GCR. It is not open to characterise the correspondence between Newcrest and Mr Capnerhurst as comprising a "notice of withdrawal" for the purposes of s 130, and it was not lodged with the Director-General. Martin clearly establishes that a failure to comply with the approved form as required by s 382 does not invalidate the application and any licence granted in response to it. Section 382 requires the provision of information about an application in a particular manner (Martin at [32]). It is not concerned with the validity of an application, referring to the "form" of an application.

1. The absence of a duly completed form hinges on the removal of the first page of the application form lodged in March 2009 (two year renewal) and its replacement in May 2009 with a first page seeking a five year renewal. It is difficult to understand how this replacement resulted in the absence of a duly completed form particularly where the replacement page was in the approved form.

Newcrest's submissions

1. The Mining Act does not expressly provide that the physical destruction of an application gives rise to its legal extinction, so that such a construction must be implied. Sections 117, 130 and 131 imply that the application has a legal or juridical existence separate from the Form 9 lodged.

1. It is common ground that the 24 March 2009 application was a valid application for renewal of EPL1024, lodged within time and received by a duly authorised officer of the Department: FAPOC, pars 10, 23, 63. That application triggered the Minister's power to renew the authority under s 114. The Minister did not lose that power because an officer within the Department detached a page from the application form. The Minister would not have lost his power to renew if the application form had been accidentally lost or destroyed within the Department.

1. GCR's argument on this ground of review is inconsistent with s 131 of the Mining Act, which provides (and, in 2009, provided):

For the purposes of this Act, an application for an authority is pending from the time it is lodged until the time it is finally disposed of.

1. As s 131 makes clear, once an application has been "lodged", the application remains "pending", and therefore continues to exist, until it is "finally disposed of". The application may be finally disposed of by withdrawal (s 130), refusal (for example, s 22(1)(b)) or the grant of an authority (for example, s 22(1)(a)). Unless and until it is disposed of in one of those ways, the application continues its juridical existence, regardless of whether the application form is lost, altered or destroyed.

1. Section 382(1) of the Act expressly draws a distinction between an "application" and the "approved form", in this case, Form 9:

An application or tender under this Act must be in or to the effect of the approved form.

1. An application that is "to the effect of" Form 9 is not made on Form 9. Yet s 382(1) contemplates that it is still an "application" for the purposes of the Act.

Duly completed application under Mining Act in existence

1. It is necessary to construe the provisions of the Mining Act in light of the facts before the Court to understand how the statutory scheme is intended to operate in these circumstances and whether the irregularities identified by GCR give rise to invalidity of EPL 1024. It is fair to characterise the loss or destruction within the Department of a page of an application lodged for the purposes of the Mining Act and its effective replacement with another page as irregular and is not administrative action conducive to transparency of decision-making by the Department. Whether that irregularity has legal consequences under the Mining Act remains to be determined. The application of well established principles of statutory construction requires that a purposive approach be adopted, as I identified in Hurstville City Council v Minister for Planning and Infrastructure [2012] NSWLEC 134; (2012) 189 LGERA 269 at [55]:

Section 33 of the Interpretation Act 1987 requires a construction which promotes the purpose or object of an Act over one which would not. Guidance on applying this approach was provided by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky at 381 - 382. Their Honours stated that the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute", that a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals" and that "a court construing a statutory provision must strive to give meaning to every word of the provision". Brennan CJ and McHugh J in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 also referred to the necessity of applying a construction of a statute consistent with its purpose. Where words are plain and unambiguous they should be given their ordinary and grammatical meaning, per Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 305. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] the joint judgment (Hayne, Heydon, Crennan and Kiefel JJ) confirmed that statutory construction commences with a consideration of the language of the text, which may require consideration of the context, including the general purpose of the provision and the mischief it seeks to remedy. See also French CJ (in a separate judgment but agreeing with the orders of the joint judgment) at [4] - [5]. In Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704 at [12] Allsop P stated that in construing an Act the legal and historical context must be considered at the outset. At [13] his Honour emphasised the principles in Project Blue Sky.

1. In SAS Trustee Corporation v Woollard [2014] NSWCA 75 at [58] Bathurst CJ, (Tobias JA agreeing) cited Alcan and emphasised the importance of the words of the statute. Effect should be given to the objects of the Mining Act. These include in s 3A to provide an integrated framework for the effective regulation of authorisations for prospecting and mining operations.

1. GCR emphasised the structure of the Act which in Parts 3 (exploration licence), 4 (assessment leases) and 5 (mining leases) requires an application to be lodged containing particular information. The Minister may grant or refuse an exploration licence after considering an application: s 22. A similar provision exists in s 41 for assessment leases and s 63 for mining leases. All these provisions underline the importance of an application being properly made in order for the Minister's approval powers under the Mining Act to be exercised. Clause 56 of the Mining Regulation refers to applications generally and specifies in detail how these may be lodged as to manner (in person, by facsimile or by post), with whom in the Department, and with presumptions of when lodgement occurs. The power to renew an exploration licence in s 114(1) is conditional on an application being considered by the Minister. There are strict timeframes for the lodging of an application for renewal in s 113. Sections 113(2) and (3) specify when an application must be lodged. Section 382(1A) provides that a form is not duly completed unless completed in the manner specified or has attached the specified information.

1. The instructions for the completion of the Form 9 were in evidence. There is no dispute these were complied with in the application lodged by Newcrest in March 2009. All relevant statutory provisions were complied with by Newcrest when the application for renewal on the Form 9 was made in March 2009. At that stage the requirements for an application were met in terms of timing and content which suggests that the requirements of the Mining Act were then satisfied so that an application was on foot. In the absence of a notice of withdrawal under s 130 the application was pending under s 131.

1. As identified by Newcrest the word "form" appears in subsections (1) and (1A) of s 382. Subsections (1) and (2) of s 382 refer to an application separately from a form, suggesting these are not one and the same. This suggests that the Respondents' submission that the removal and replacement of a page of the written application and lodgement of a new special circumstances submission does not destroy the legal status of the application made within time and otherwise complying with the statute is correct. This construction is purposive because it supports the effective regulation of authorisations for prospecting and mining operations.

1. It must follow that GCR's case based on Mr Capnerhurst receiving when not authorised to do so the new first page of the application has no legal consequence in terms of the validity of the application. It was already duly completed and satisfied the requirement of the Mining Act. The later event did not change that legal status. Nor was there a constructive withdrawal of the application, and neither Respondent contended that there was a withdrawal, whether constructive or actual.

1. Martin concerned the absence of recently audited financial statements in an application for an exploration licence under the Mining Act. The Court of Appeal (Basten and Meagher JJA, Handley AJA) held that the deficiencies in relation to a completed form pursuant to s 382 did not affect the exercise of the Minister's power to grant an exploration licence under the Mining Act at [42]. Section 13 which specified particulars that had to be included in such an application was held not to impose an essential condition for the validity of an application to be determined by a court, at [31]. The question posed was whether compliance with s 13 and the required form of the application was a precondition to the exercise of the power to grant a licence. If so, was the decision-maker's satisfaction in that regard sufficient or was it a matter for the court to determine, at [36]. The decision-maker's discretion under s 22(1) to grant or refuse an application for a licence allowed that person to decide if the information was sufficient for the Department's purposes, at [40]. Applying the principles of Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 as to whether such a breach would give rise to invalidity of the approval, the absence of the information was held not to invalidate the application or the licence at [41]-[42]. Section 135 (waiver of minor procedural matters) was also referred to as indicating that Parliament did not intend to invalidate exploration licences granted on defective applications, at [44].

1. GCR sought to distinguish the decision in Martin because it was directed to the failure of an applicant to provide financial information in the approved form whereas GCR relied on the decision as confirming its argument that the non-existence of a duly completed form at the time of the grant of the authority would invalidate the approval. I have already determined in par 44 that the loss of a page of the application and its replacement by a page with different information and the lodgement of a different special circumstances submission does not result in the legal destruction of the valid application, one reason this submission fails.

1. GCR submitted that the existence of an application is a jurisdictional fact such as that in Public Service Association. That case concerned a completely different issue and statutory framework directed to establishing the jurisdiction of the Industrial Relations Commission and provides no assistance in this case. In any event I have found there was an application on foot at the time of the grant of the authority. Martin considered the provisions of the Mining Act relating to the grant of an exploration licence. The scheme of the Act in relation to applications for the renewal of exploration licences is generally similar. While the deficiency of the application form relied on by GCR is different to that in Martin the reasoning does apply by analogy and supports the Respondents' contentions. Applying by parity of reasoning the Court of Appeal in Martin the adequacy of Newcrest's application for renewal was a matter for the decision-maker.

1. GCR is unsuccessful on this ground of review.

Ground 2 No special circumstances submission to enable satisfaction under s 114(6)

1. The FAPOC provide in relation to this ground:

46. On 25 May 2009 Newcrest sent to Mr Capnerhurst an email that attached a new "Submission to Accompany Special Circumstances Renewal Application" which inter alia contained submissions of the special circumstances which may warrant the renewal of EPL 1024 for a period of five years (the new submission).

Particulars

Email from Ms Bowyer to Mr Capnerhurst entitled "EL 3856, EPL 1024 - amended renewal submission" transmitted at 11.08 am.

47. On 27 May 2009 (9.43 am) Mr Capnerhurst sent an email to Newcrest in relation to the new submission and stated: "I will attach these to the renewal document."

48. Contrary to the intent expressed in the email dated 27 May 2009, Mr Capnerhurst did not attach the new submission to the Renewal Application containing the new first page and the "Submission to Accompany Special Circumstances Renewal Application" received by the Department on or about 27 March 2009 (the old submission) formed part of the Renewal Application containing the new first page.

Particulars

(i) The Renewal Application discovered by the First Respondent in the verified List of Documents dated 2 August 2013, comprises the new front page attached to the remaining part of the Renewal Application and the old submission.

(ii) The Department file relating to the application for the renewal of EPL 1024, namely file no. T74/1892 (the file) discovered by the First Respondent in the verified List of Documents dated 2 August 2013, contains the old submission. The First Respondent has not discovered the new submission as forming part of the file before the Renewal.

49. In the premises, there was no special circumstances submission in support of the application for the renewal of EPL 1024 for more than two years, for the purpose of section 114(6) of the Mining Act and the Renewal was invalid and is of no force or effect.

50. Alternatively, if it be the fact that on or about 27 May 2009 Mr Capnerhurst removed the old submission from the Renewal Application and attached the new submission to the Renewal Application containing the new first page, the effect of removing the old submission and substituting the old submission for the new submission, was to:

(a) withdraw the old submission and replace the old submission with the new submission on or about 27 May 2009; or

(b) render the Renewal Application invalid, as the particulars of the Renewal Application containing the new first page and the new submission had not been certified as correct.

Particulars

(i) There was no power under the Mining Act to amend or vary or supplement the old submission on 20 May 2009, by substituting the old submission for the new submission.

(ii) The Renewal Application containing the new front page and the new submission did not comply with section 382 of the Mining Act.

(iii) The Renewal Application containing the new first page and the new submission was not lodged with the Director-General within the time prescribed by section 113(2) of the Mining Act.

51. Further, Mr Capnerhurst was not a person nominated by the Director-General to receive the application for the renewal of EPL 1024 which included the old submission, and was not authorised to receive the new submission.

Particulars

"Nominations of Persons to Receive Applications" for the purpose of regulation 56(2) of the Mining Regulation executed by the Director-General and dated 10 July 2006.

52. In the premises, there was no special circumstances submission in support of the application for the renewal of EPL 1024 for the purpose of section 114(6) of the Mining Act and the Renewal was invalid and is of no force or effect.

1. The Minister admitted that the delegate Mr New did not have before him at any stage Newcrest's amended special circumstances submission relating to a five year period and did not read it before he renewed EPL1024 for five years on 8 October 2009. The special circumstances report in support of a five year renewal period was not before the ETC at its meeting on 16 July 2009. In light of these admissions from the Minister there was no factual basis for that part of ground 2 identified in pars 26-29 of the FAPOC and these paragraphs have not been set out. Another matter to be noted concerns the Department's files, as more than one file was discovered. There is a Titles Branch file no T74/1892 (FAPOC par 48(ii)) and part files kept elsewhere such as in the Geological Survey Branch, also discovered by the Department and tendered by GCR (section B, exhibit A).

1. In answer to par 48 of the FAPOC, the Minister's defence stated that:

(a)   the old submission and the new submission were both separate documents from the renewal application (whether with or without the old or new first page) and formed no part of the renewal application;

(b)   Mr Capnerhurst provided the new submission to Mr Wood; and

(c)   Mr Capnerhurst did not provide the new submission to the Titles Branch of the Department for inclusion on the file (which was maintained by that branch).

1. On 25 May 2009 Ms Boyer sent Mr Capnerhurst an email with PDF attachment which was entitled "Renewal Submission - EL3856 2009 amended.pdf" (exhibit A Vol 1 Tab 5). The email had as its subject "EL3856, EPL 1024 - Amended Renewal Submission". The text of the email was:

Dear Kevin,

Please find attached the amended Renewal Submission as requested. A brief statement and expenditure figures have been added for Year 3 to 5.

If you have any further queries please do not hesitate to contact me.

The Renewal Submission was for five years and was in relation to both EPL1024 and EL3856.

1. On 2 June 2009 Mr Capnerhurst of Mineral Exploration Assessment completed the minute paper dated 2 June 2009 (exhibit 1, page 48). Step 4 in Stage 2 refers to a Geo Survey minute. The minute paper stated:

Special Circumstances Renewal is recommended for sixty months as Newcrest has met the reporting requirements and greatly exceeded the expenditure commitment on this group of licences. Effective exploration continues to be carried out as they try and increase the resources of the Cadia Operations.

CONCLUSIONS

Special Circumstances Renewal policy criteria are satisfied

RECOMMENDATIONS

Special Circumstances Renewal is recommended. The period of renewal should be 60 months.

1. On 30 June 2009 Mr Wood, Principal Geologist in Minerals Exploration Assessment, supported the recommendation. He wrote on the minute paper and then signed his name:

Recommendation for special circumstances renewal of 6 units for 5 years is supported.

1. At the bottom of the minute paper is a reference to "Titles" in accordance with the last step of the check sheet for Stage 2 (exhibit 1, page 47). The minute paper was received and placed on the Titles Branch file. The amended special circumstances submission was not.

1. Stage 3 of the check sheet (exhibit 1, page 50) requires in Step 1 that a minute be prepared to the ETC via "Team leader". The document was prepared by Mr McDonald of Western Region Titles for the Exploration Titles Committee dated 3 July 2009 (exhibit 1, page 42). It states:

SPECIAL CIRCUMSTANCES POLICY SATISFIED: YES

GEOLOGICAL SURVEY RECOMMENDATION

Special Circumstances renewal is recommended and supported. The term of the renewal should be five years.

1. In accordance with Step 1 of Stage 3 the minute to the ETC was sent via the Team leader Mr New. In the minute to the Exploration Titles Committee Mr New (exhibit 1, page 43) wrote:

SCR (100%) for 5 years is supported

He initialled and dated it 7 July 2009.

GCR's submissions

1. Ground 2 only arises if there is an application to consider pursuant to s 114(1) on 8 October 2009 (I have held there was). Firstly, Mr New did not have the special circumstances submission for five years before him (admitted by the Minister). Consequently it is self evident that the Minister's delegate did not achieve the required state of satisfaction for the purposes of s 114(6).

1. The renewal application was an approved form and s 382(1A) therefore applies. Form 9 at question 10(a) requires that particulars of the special circumstances which may warrant the renewal of the licence for more than half the number of units currently covered by this licence be provided. Form 9 at question 11 requires certification that all of the particulars required to accompany the application have been supplied and are correct (exhibit A, s A, tab 2, p 5). The five year special circumstances document had to be supplied with the renewal application. That this was required can be inferred from Ms Bowyer's email to Mr Capnerhurst dated 25 May 2009 which states that the amended renewal submission as requested was attached with a brief statement and expenditure figures added for years 3 and 5. This practice is consistent with the Department's policy entitled "Five Year Terms for Exploration Licences" dated 18 May 1993. It is inexplicable how the Minister's delegate could consider a renewal application and be satisfied that special circumstances for the purposes of s 114(6) exist for a five year renewal, without a document on which to base that satisfaction. As a jurisdictional fact of the subjective variety its existence is to be determined to the reasonable satisfaction of the decision-maker and the Court must determine whether it is established that that the decision-maker was not reasonably satisfied per Barrick Australia Ltd v Williams [2009] NSWCA 275; (2009) 74 NSWLR 733.

1. The Minister's defence (par 39) asserted that the special circumstances submission was provided by Mr Capnerhurst to Mr Wood. However, this is a bare assertion unsupported by evidence and, in any event, does not assist the Minister as the Court has held that the obligation to achieve a state of satisfaction pursuant to s 114(6) falls on the decision-maker and he is not entitled to rely on knowledge of others in the Department as inferentially giving rise to his satisfaction: Gold and Copper Resources Pty Limited v Minister for Resources and Energy [2013] NSWLEC 66 (GCR (EL3856)) at [93].

1. The Minister suggested that the Minister's delegate was both aware of the need to be satisfied of the existence of special circumstances and that he was so satisfied with reference to the documents and circumstances outlined by Newcrest. GCR accepted that it has the onus of proof, to determine this issue the Court need only find as a matter of inference from the documentary evidence that the Minister's delegate did not form the mental state of satisfaction required by s 114(6).

1. The documents relied on by the Respondents do not assist the Court in determining on the balance of probabilities that the delegate was satisfied that special circumstances existed for a renewal for five years. Without the special circumstances submission for five years, the Minister's delegate could not have considered the "particulars of the special circumstances which may warrant the renewal of this licence for more than half the number of units currently covered by this licence" which were required by s 382 and the Form 9 to be included in the application with respect to the term of five years sought. The documents referred to by Newcrest merely point to material which demonstrates that other persons who may have seen the five year special circumstances submission were satisfied that special circumstances for renewal existed. This is insufficient because it does not establish affirmatively that the Minister's delegate was satisfied as to the pre-condition in s 114(6), and the principle in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 does not apply to Mr New as the Minister's delegate. The remaining documents relied on by Newcrest are irrelevant. Reliance on Mr New's handwritten not that "SCR (100%) for 5 years is supported" actually shows that he did not form the mental state of satisfaction required under s 114(6).

Minister's submissions

1. In order for GCR to succeed on this ground as pleaded, it would be necessary for it to demonstrate that the failure of Mr New to consider the submission could only compel one conclusion, namely that he did not hold the necessary mental state of satisfaction (see Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2010] NSWCA 353; (2010) 178 LGERA 411 at [72]). The futility of this ground then becomes readily apparent.

1. While the onus is not on the Minister to positively demonstrate that Mr New did hold the necessary mental state of satisfaction (see Caroona in the Court of Appeal at [57]-[58]), Newcrest's submissions specify a number of documents and circumstances that make it clear Mr New was both aware of the need for him to be satisfied of the existence of special circumstances and that he was so satisfied. First amongst these for current purposes is his own endorsement on the 3 July 2009 minute paper to the ETC "SCR (100%) for 5 years is supported" (page 43).

1. Minerals Exploration Assessment (MEA) is the specialist unit charged with, inter alia, providing advice whether special circumstances exist. Its minute of 2 June 2009 prepared by Mr Capnerhurst concluded that there were such special circumstances, that the special circumstances policy criteria were satisfied and recommended renewal for five years. The Principal Geologist of the MEA, Mr Wood, supported this recommendation. GCR's own witness, Mr Lewis, confirmed in cross-examination that the matters raised in the five year report were ones requiring geological expertise.

1. Given that the geologists in this specialist assessment unit concluded that there was evidence upon which to be satisfied that there were special circumstances, there is no basis for saying there was not any probative evidence for Mr New to be satisfied that there were special circumstances. None of the reasons given in the 2 June 2009 minute from MEA could be said to be irrelevant to the concept of special circumstances. That minute was in the Titles Branch file which was before Mr New both as a member of the ETC and afterwards until he made the decision to renew EPL1024. Mr New personally supported the renewal for special circumstances in the minute to the ETC.

1. During the hearing, GCR appeared to advance the proposition that the minute of 2 June 2009 from MEA prepared by Mr Capnerhurst was not based on his consideration of the special circumstances submission relating to the five year renewal. To the extent that it is still relevant, this proposition is denied and it is not made out on the evidence. Mr Capnerhurst received the submission at his request from Newcrest on 25 May 2009 (exhibit A, vol 1, section A, page 19) a mere eight days prior to his signing of the minute. The inference is overwhelming that in these circumstances Mr Capnerhurst did consider the document in preparing the minute. This is supported by GCR when, in the context of its fraud claim, it sought to highlight the close temporal connection between the receipt of the documents from Newcrest and the preparation of the minute by Mr Capnerhurst.

1. The minute dated 3 July 2009 is clearly based on the conclusion to that effect in the minute paper coming from MEA. There is also the following:

"GEOLOGICAL SURVEY RECOMMENDATION

Special Circumstances renewal is recommended and supported. The term of the renewal should be five years."

1. This is a statement of the recommendation in the minute paper from MEA within Geological Survey.

1. Mr New is entitled to consider and rely on the expertise and knowledge of officers in the Department in determining whether he was satisfied of the existence of special circumstances. Such reliance and consideration are clearly permissible especially given the geological expertise involved in the matter of special circumstances as set out above (see for example Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 30 per Gibbs CJ). Accordingly, for example, Mr New was entitled to and did consider the minute prepared by Mr Capnerhurst and endorsed by Mr Wood (which recommended special circumstances renewal). He could not substitute their mental state for his own but he could consider and rely on their expertise in reaching his own conclusion (which he did).

1. GCR cannot demonstrate, based on one piece of evidence, that having turned his mind to the issue, the delegate was not positively satisfied that special circumstances existed

Newcrest's submissions

1. GCR's case is limited to the fact that the five year special circumstances submission (exhibit A, p 19) was not before Mr New. That is not a basis on which the Court would find, on the balance of probabilities, that Mr New was not satisfied of the existence of special circumstances: Caroona in the Court of Appeal at 436 [58] per Tobias JA (Giles and Hodgson JJA agreeing at [1] and [2]). There is other material that shows Mr New was satisfied, and had a proper basis on which to be satisfied, of the existence of special circumstances:

(a)   On 7 July 2009, Mr New himself wrote, "SCR (100%) for 5 years is supported" at exhibit A, p 101.

(b)   Mr New had recommendations from the Department's expert geological staff, who had reviewed the proposed five year exploration program, that supported renewal for five years: exhibit A, p 99; exhibit A, p 100. Mr New was entitled to have regard to those recommendations. He was not required to read every underlying document for himself. The minute paper of 2 June 2009 (exhibit. A, p 99) recorded that EPL1024 was immediately adjacent to the eastern side of the Cadia Mine leases; that Newcrest had, in the past, met the reporting requirements and greatly exceeded the expenditure commitment; and that Newcrest was continuing effective exploration in order to try to increase the resources of the Cadia operations.

(c)   Newcrest's two year special circumstances submission (exhibit A, p 71) was before Mr New and provided a basis for Mr New to be satisfied of the existence of special circumstances justifying renewal for five years. It recorded:

(i)   EPL1024 formed an integral part of the Cadia district exploration project, which included the Cadia mines: at exhibit A, p 45.

(ii)   Newcrest had drilled ten deep diamond drill holes in the EL3856/EPL1024 exploration area over the previous term: exhibit A, p 46.

(iii)   Total expenditure on EPL1024 over the previous term had been $685,074: exhibit A, p 48.

(iv)   Newcrest had greatly exceeded its minimum expenditure covenants: exhibit A, p 50.

(v)   Newcrest was continuing to carry out licence-wide exploration: exhibit A, p 50.

(vi)   Newcrest had ongoing major exploration and mining programs in place: exhibit A, p 50.

(d)   Newcrest's 2009 Annual Report for EPL1024 at confidential exhibit 5A.

(e)   The entry dated 2 June 2009 in the Department's electronic files (exhibit A, p 54), recording a recommendation by Mr Wood for special circumstances renewal.

(f)   The mineral exploration assessment reports created on or around 2 June 2009 at exhibit 4A and the record of expenditure up to 25 June 2009 also at exhibit 4A.

(g)   The document at exhibit A, p 56, which appears to be a contemporaneous record of the ETC's meeting of 16 July 2009 (which Mr New attended), records that both the Geological Survey Branch and the Titles Branch recommended special circumstances renewal.

No inference established that Mr New not satisfied

1. Under s 114(6) the Minister's delegate was required to be satisfied that "special circumstances exist that justify the renewal of the licence" over more than half of the area over which the exploration licence had existed as a precondition to the exercise of power in that section. It is agreed this section is engaged so that Mr New as the delegate had to be personally satisfied of the special circumstances (as I held in GCR (EL3856)). In GCR (EL3856) I held that the Carltona principle did not apply to a ministerial delegate such as Mr New so that he was required to form the requisite degree of satisfaction of special circumstances under s 114(6) at [91]-[92]. I rejected the Minister's submission that as long as someone in the Department was aware of a relevant matter that satisfies the statutory requirement of satisfaction of special circumstances, that was sufficient to satisfy s 114(6) at [90]. The evidence in that case was that Mr New formed a view in 2009 that special circumstances existed but the decision to renew was not until 2011 with no evidence that he was of the same view when the renewal was granted. There the Minister sought to rely on the expression of satisfaction by other departmental officers as satisfying the requirement in s 114(6), which submission I rejected. Here the Minister accepted that to achieve the requisite state of satisfaction directs attention to the mental state of the delegate personally (cf Carltona) which is consistent with my finding in GCR (EL3856). GCR's submissions are to similar effect but submitted that there is no evidence Mr New was satisfied. As Mr New has not given evidence GCR must establish its case on the basis of inference arising from the documentary record set out above at par 53-58.

1. In Vilro Pty Ltd (in voluntary liquidation) v Roads and Traffic Authority [2010] NSWLEC 234; (2010) 179 LGERA 47 I considered relevant authorities on whether inference or mere speculation arose from the evidence in that matter (a compulsory acquisition of land case). At [105] I cited Stephen J in Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155 quoting Dixon CJ in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 that a court may not choose between guesses. Facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth which the tribunal of fact may reasonably be satisfied. At 107 I held that the drawing of inferences in the absence of specific evidence requires that there be adequate facts on which to base an inference beyond a probability of events occurring. The principle in Jones v Dunkel recognises that an inference may be drawn about the absence of a witness but only where evidence already gives rise to an inference. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171 I held similarly at [93] citing Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5 where the High Court stated:

In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at p 678

1. In this ground GCR alleged that by inference Mr New failed to form the necessary state of satisfaction required in relation to the existence of special circumstances.

1. This ground as initially articulated by GCR was narrow and focussed solely on the accepted fact that the special circumstances submission for a five year period sent by Newcrest was not before Mr New at any stage of the renewal process. The Minister admitted that it was not. My understanding of this ground as articulated in submissions by GCR which evolved over the hearing is that Mr New as the delegate had to be satisfied that special circumstances existed justifying a five year renewal period, he did not form such satisfaction as he did not read the amended special circumstances submission for five years sent by Newcrest on 25 May 2009. That the statutory framework and departmental policy and practice identified in GCR's submissions underlines the importance of receiving a five year renewal submission if a five year renewal period is sought can be accepted but that does not advance GCR's case. Such a report was received by the Geological Survey Branch of the Department in May 2009 from Ms Bowyer. According to the agreed chronology set out in par 19, last item, the five year special circumstances submission was forwarded by Mr Capnerhurst to Mr McDonald and Mr New in November 2011, long after the decision to renew in 2009 by Mr New. GCR then argued that Mr New was not entitled to rely on the knowledge and opinion of others in the Department in reaching a state of subjective satisfaction. Further GCR appeared to dispute that Mr Capnerhurst and Mr Wood read the five year special circumstances submission in the Geological Survey Branch before preparing and endorsing the minute dated 2 June 2009 to the effect that the special circumstances requirement was satisfied.

1. The ground as articulated in the FAPOC does not reflect these submissions. Paragraph 48 of the FAPOC states that the Titles Branch file (T74/1892) as discovered did not contain the five year submission only the two year submission (the old submission) and the five year submission was not part of the file (meaning the Titles Branch file) before renewal. The Minister submitted that the five year special circumstances submission remained on the part papers kept in the Geological Survey Branch. The documentary record confirms this as this submission was discovered by the Minister from other files held in the Department, tendered by GCR (exhibit A, section B, tab 6). That the five year special circumstances submission was not on the Titles Branch file alone is probative of nothing. The premise in par 49 of the FAPOC is not established.

1. Paragraph 50 of the FAPOC appears to relate to ground 1, focussing on the absence of the five year special circumstances submission from the application for renewal lodged by Newcrest on the Titles Branch file. My reasoning in ground 1 also applies to that contention. In other words, I consider a duly completed application was filed by Newcrest within time which satisfied the requirements of the Mining Act. Paragraph 51 alleges that Mr Capnerhurst was not authorised to receive the five year submission as he was not nominated for that purpose under cl 56(2) of the Mining Regulation. There is no legal consequence arising from that contention, even if correct, in light of my finding on ground 1. I will turn to the case as now articulated by GCR, as outlined above in par 77.

1. GCR, accepting that it has the onus of proof, submitted the Court need only find as a matter of inference from the documentary evidence that the Minister's delegate did not form the mental state of satisfaction required by s 114(6). That submission understates the onus borne by GCR because for GCR to succeed a negative finding of satisfaction must be found, per Caroona in the Court of Appeal at [72], to arise by inference given that the evidence in relation to this ground consists entirely of the Department's files. In Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2010] NSWLEC 1; (2010) 172 LGERA 25 Preston J held that the burden of the onus of proof of whether the Minister (in that case) had not formed the requisite state of satisfaction was not discharged given the documentary record before the Minister, including his signature on the relevant departmental briefing paper. The Court identified at [70] that the applicant could have availed itself of court processes such as the administration of interrogatories, requesting under Pt 4 r 4.3 of the Land and Environment Court Rules 2007 that the Minister provide reasons in order to fulfil its burden of establishing the Minister did not form the required state of satisfaction. No such steps have been taken by GCR in these proceedings. While in GCR (EL 3856) the absence of such steps was not fatal to GCR's success on one ground of review, the matter in issue was different to this matter. I held that an inference could be drawn in the absence of any expression of satisfaction by Mr New in temporal proximity to the issuing of a renewal, unlike this matter where there is such a statement.

1. Contrary to GCR's submission, the delegate's own note stating "SCR (100%) for 5 years is supported" on the minute dated 2 June 2009 from the Geological Survey Branch is evidence that he did form the requisite mental state of satisfaction as to special circumstances on or about 7 July 2009. Criticism by GCR that the word "supported" was used rather than satisfied elevates semantics over substance, as the Minister submitted. That evidence negatives the inference that GCR must persuade the Court to draw. GCR has failed to discharge the onus of proof of demonstrating that the delegate did not achieve that state.

1. In light of the Minister's submission that Mr Capnerhurst and Mr Wood considered the five year special circumstances submission, GCR's case evolved to allege that Mr New could not have formed a view as to satisfaction as there is no evidence that Mr Capnerhurst and Mr Wood read the five year special circumstances submission before preparing and endorsing the minute of 2 June 2009 sent to the Titles Branch and Mr New. As the Minister submitted, the inference that arises more readily from the documents in the Geological Survey Branch part papers is that the five year special circumstances submission was available to both officers. To draw on the discussion of authorities at par 75, there is no basis for the inference that they did not read the five year special circumstances submission and GCR's submission is speculation in my view. There are no facts on which GCR can rely for an inference higher than a probability of that event occurring, that is that the officers did not read the report. Alternatively, the facts give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture, per Bradshaw at 5.

1. While much hearing time was spent closely reviewing the Minister's files and GCR's submissions summarised above in detail which identify steps taken by officers such as Mr Capnerhurst as reflected in the documentary record, there cannot be much debate about the steps that were taken and indeed the documentary record largely speaks for itself. This record is contained in the discovered documents from the Department, being the Titles Branch file and other branch files (and from Newcrest to a limited extent) identified above in the documentary record section. The Titles Branch file identifies specified steps required to be taken as outlined in the check sheets identified in that file and referred to in the parties' submissions. Five stages of the renewal process are identified.

1. There is some dispute about the implications of the documentary record before the Court. As identified in par 131 one disagreement relates to a factual assertion by GCR of the inference to be drawn as to the fate of the original first page of the application sent by Ms Bowyer of Newcrest on 27 March 2009 to the Department. GCR pleaded in par 70 and 83 of the FAPOC that this was removed by Mr Capnerhurst from the renewal application on the Titles Branch file and destroyed. The page was produced by Newcrest and was not discovered in the Department's files. The evidence does not establish how the amended page 1 found its way onto the Titles Branch file or why the original page 1 is not on the Titles Branch file. Its fate is unknown. The inference could arise that it was inadvertently lost or deliberately destroyed within the Department.

1. A further dispute related to whether the Titles Branch file as a whole went to the Geological Survey Branch. The Minister submitted that part of the file was held by Mr Capnerhurst. The documentary record suggests that only a part file went to Geological Survey. Stage 2 step 4 in the Titles Branch file refers to a part paper being sent to Geological Survey on 27 March 2009 (exhibit 1 p 46). A minute by Mr Capnerhurst in Geological Survey is headed part T74 1892 (exhibit 1 p 48).

1. Linked to these two issues is whether Mr Capnerhurst had access to the Titles Branch file and was the person who replaced the first page of the renewal application on that file. GCR asserted that he must have done so because he received the amended page 1 and the five year special circumstances submission from Ms Bowyer, said he would attach these to the renewal documents in an email to Ms Bowyer on 27 May 2009 and worked in the Orange office of the Department where the Titles Branch file was located albeit in a different section. GCR asserted that the index of that file was not always signed when accessed, as identified in its detailed submissions in reply. While that submission can be accepted, no inference arises one way or the other from the Titles Branch file or elsewhere of how the amended page 1 came to be there and the original page 1 removed and replaced. Ultimately this is not material in any event.

1. No evidence is adduced by the Minister or Newcrest from the officers or the employee the subject of these allegations so that unless explicit in the records tendered in evidence, the alleged fraudulent misrepresentations must be implied by inference from the documents. GCR submitted that an inference arose based on Jones v Dunkel that in the absence of evidence from any of the relevant departmental officers that their evidence would not have assisted the Minister the case as conceived by GCR must be upheld. As the Minister submitted the principle in Jones v Dunkel arises only where an adverse inference is already open on the evidence. Only in those circumstances will a failure to call a witness to contradict or explain evidence give rise to the inference referred to in Jones v Dunkel. Whether those inferences arise will be considered below (if necessary to do so).

1. There are several reasons why these allegations cannot succeed and I consider these now.

Mr New had discretion to determine renewal

1. Central to GCR's case is the submission that the fraudulent misrepresentations made were intended to mislead the ETC. ETC's role as referred to in FAPOC par 104 and 106 was to consider the application for five years at its 16 July 2009 meeting. At FAPOC par 104(b) the ETC is alleged to presume the regularity of the application for the renewal of EPL 1024 for five years. An important hurdle for GCR's case, identified by the Respondents, is that Mr New the Minister's delegate is the final decision-maker and he was aware, according to GCR's case, at all relevant times of the changes in the application. This is articulated in the FAPOC at par 64-66 and 99 which state Mr New (and Mr McDonald) were aware that the original first page of the renewal application and the original special circumstances submission sought renewal for two years at all relevant times. Mr New is identified as being one of the officers involved in the making of misleading representations to the ETC, a committee within the Department.

1. As the Respondents submitted, the ETC is not the final decision-maker and has no statutory role under the Mining Act. Newcrest's submissions about the nature of the ETC in par 181 are accepted. Unless GCR can prove that Mr New had no independent discretion separate from the ETC's recommendations the case must fail. GCR relied on the evidence of Mr Lewis to prove this aspect of its case. Mr Lewis attests that it was the practice within the Department that the recommendations of the ETC be implemented by the decision-maker. His evidence considered events at a general level, was not comprehensive in that his attendance at ETC meetings was sporadic, and he had never acted as the Minister's delegate. Mr Lewis' evidence does not demonstrate that Mr New believed he had no discretion to be exercised separately from the ETC. His evidence confirms a practice of matters being considered by the ETC before the decision of a delegate such as Mr New. The administrative guidelines to which he refers, Policy Renewal of Exploration Licences for Minerals and Procedure Manual for renewals of exploration licences, do not provide that Mr New as a delegate of the Minister had no discretion separate from implementing the recommendation of the ETC. As Newcrest submitted the fettering of discretion in this way is unlawful. In Minister for Immigration and Ethnic Affairsv Conygnham (1986) 68 ALR 441 at 454 Sheppard J states that there was no ground for elevating the guidelines to the status of law. In Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 98 Hill J citing Gummow J in Khan v Minister for Immigration, Local Government and Ethnic Affairs (Federal Court, 11 December 1987, unreported) states:

There can be no challenge to a decision merely because a decision was made in accordance with a policy. To ensure consistency of administrative decision-making, it will often be appropriate for a policy to be issued containing guidelines. The policy of the Minister, to which I have referred, is one such example. However, a decision-maker must take care to ensure that he does not slavishly follow a policy and disregard the particular circumstances of a case. As Gummow J said in Khan's case ((supra) (pp 11-12)):

" ... what was required of the decision-maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... "

1. GCR submitted above at par 142 that Mr New implemented the ETC's recommendation by granting the renewal as usual departmental practice and that the evidence supports the finding that Mr New would not have renewed the licence without the ETC's recommendation. This submission cannot be correct in light of the findings and authorities cited by me above.

1. The allegations in pars 101, 102 and 103 in relation to Mr New cannot be inferred. On this basis alone this ground fails.

No representations made

1. A further impediment to GCR's claim is, as the Respondents submitted, the representations identified in par 76 of the FAPOC are not conveyed to anyone looking at the Titles Branch file. The file must be looked at as a whole and in light of all records of the application kept, which includes the Department's electronic TAS. The immediately preceding page on the Titles Branch file was the covering letter from Newcrest stating that the company wished to renew for two years (exhibit 1 p 60). Immediately after the renewal application is the special circumstances submission referring to a two year renewal period to 20 May 2011 (exhibit 1 p 67). Consequently, no representations as alleged in par 76 were conveyed by the documents on the Titles Branch file when viewed collectively. Further, the TAS showed the application as being for two years at all times. Mr Harris' uncontested evidence is that a wide range of people within and outside the Department had access to that system including GCR's agent Mr Hetherington. GCR's submission (above at par 130) that the amended page with the rest of the renewal application was a false instrument is not established. The findings in Dela Cruz relied on GCR have no application in the circumstances of this case.

1. As the Minister submitted, when Mr Capnerhurst prepared the minute dated 2 June 2009 there was no reference to the period of renewal sought by Newcrest so that the alleged representations were not made. The minute dated 3 July 2009 prepared by Mr McDonald which stated that a five year renewal was sought reflects what was then understood of Newcrest's application given the communication with Ms Bowyer in May 2009. GCR asserted a representation that a term of five years was sought as part of the renewal application and that the renewal application had been lodged within time under s 113(2) and certified as correct. These two matters are not necessarily connected, GCR's case assumed that they are. Neither Mr Capnerhurst's minute nor Mr McDonald's minute convey the representations referred to in par 76 of the FAPOC (to the extent there were any).

1. When the content of the two minutes prepared by Mr Capnerhurst and Mr McDonald and signed by Mr New are considered there is no evidence that Mr New with their assistance was making false representations to the ETC. Consequently, there was also no inference about a false impression which he, Mr Capnerhurst or McDonald failed to correct contrary to the allegation in par 91 (Mr Capnerhurst), par 96 and 97 (Mr McDonald), par 105 and 106 (Mr New) of the FAPOC.

No intention to deceive assuming representations were made

1. In reply submissions at par 17 GCR articulated why the fraudulent misrepresentations were made, namely that by inference all of the conspirators believed that a renewal application for a term of five years was required for the grant of a renewal of five years.

1. Important context is provided by understanding that the Minister has power to renew an exploration licence for up to five years regardless of what period is requested in an application to renew in a Form 9, as I held in GCR (EL 3856) at [57]-[60]. While that judgment delivered in 2013 is after the 2009 renewal date in this case, it was a finding which supports the Minister's case and related to a renewal application made in March 2009, granted in 2011, a similar date to the renewal application in this matter. I infer that it is highly likely to have been the understanding of the Minister's department in 2009 when this renewal application was considered that renewals could be granted for up to five years regardless of what was stated in the application. The events in 2004 also confirm this view was held within the Department as I consider below.

1. GCR relied on my finding at [47] in GCR (EL 3856) where I stated that departmental officers considered that a written application reflecting the period of five years intended to be recommended to the Minister for approval was required as they requested Newcrest to amend the application made in February 2009 to seek five years. The focus of my consideration there was different to this matter. No issue was there raised about the legal consequences of a change of the first page of an application for renewal and my attention was not focussed on that circumstance, unlike this matter where it is the focus. My meaning would have been clearer if I had put in the word apparently before considered. That finding does not assist GCR in this matter.

What does the 2004 renewal process show?

1. Both the Respondents and GCR relied on the events of 2004 to support their respective cases.

1. The Minister relied on the 2004 renewal process because it shows there was a change in the renewal period from two to five years after the original application was made by Newcrest in relation to EPL 1024 and another application for EL 3856. No fresh application or amendment of the original application was made to confirm that change for both applications. A Newcrest employee was contacted and a departmental officer asked if Newcrest would agree to a five year term for EPL 1024. Newcrest's verbal agreement was noted in handwriting on the Departmental file by Mr Leeks (exhibit 1 p 104, see par 103). That behaviour suggests the Department's view was that it was permissible under the Mining Act to renew an exploration licence for a period of up to five years regardless of the period specified in the original application contrary to GCR's submission. The wording of the minute dated 6 October 2004 recording the ETC's decision to renew EPL 1024 for five years with the company to be advised of this decision prior to any offer does not suggest a belief by the ETC (or anyone else in the Department) that the period of renewal granted up to five years had to be specifically requested by Newcrest in an application Form 9.

1. The process for EL 3856 was a little different according to the additional documents tendered by GCR as that renewal application went to the ETC twice. GCR relied on the events of 2004 in relation to EL 3856 to demonstrate the centrality of the role of the ETC in assessing exploration licence renewal applications because the change in the period for which the application for EL 3856 was sought from two years to five years as subsequently discussed with a Newcrest employee after the first occasion was returned to the ETC for a second consideration. Both inferences can arise from the 2004 renewal process, are not mutually exclusive and do not support GCR's case.

1. GCR must establish that there was an intention to deceive by the alleged conspirators. Contrary to GCR's submission that the officers' view about how the discretion under s 114 operated is irrelevant. I consider their (inferred) view is highly relevant to my consideration of their behaviour. GCR submitted that the substitution of page 1 of the renewal application was to circumvent the strict time requirements of s 113(2), but my finding above that a period of renewal of up to five years is lawful and that this was the departmental view as informed by events in 2004 suggests to the contrary.

1. Applications received as part of the well defined statutory process for renewal applications in the Mining Act should be preserved intact and loss or destruction of the original page 1 is unfortunate and not reflective of best administrative practice within the Department. Having said that, had a departmental officer simply attached the new first page of the renewal application to the existing two year application with a staple rather than replacing the old first page, there would be even less basis for the conspiracy to make the fraudulent misrepresentations alleged in GCR's case. This would have avoided the potentially misleading appearance of the original application on the Titles Branch file as being certified by Ms Bowyer in March 2009 for a five year renewal period when she did not so certify. An equally plausible reason for the behaviour of departmental officers in requesting an amended page 1 and removing or losing the original page 1 is that it was a clumsy attempt to confirm that Newcrest agreed to a renewal for five years rather than the two years requested in the original page 1 of the renewal application before the matter was referred to the ETC in accordance with usual departmental practice.

1. GCR has not established there was an intention to deceive by any of the alleged conspirators.

ETC did not act on representations if made

1. The FAPOC at par 104(a) and (b) allege in relation to the ETC that on 16 July 2009 the attendees considered the application for renewal of EPL 1024 for five years including the new first page which conveyed the representations and presumed the regularity of the application for five years. There is no evidence for either of these assertions beyond the circumstance that the Titles Branch file was before the ETC. There were indications on that file the renewal application originally sought two years. The minutes of the ETC for the meeting state in relation to EPL 1024 that the committee recommends renewal of six units for five years. That recommendation was intended for Mr New in this case.

No fraudulent representation by Ms Bowyer

1. For reasons already identified above the claim against Ms Bowyer cannot succeed. I will deal briefly with the specific allegations made in the FAPOC. That the fraudulent misrepresentation arises by inference is the basis of the matters alleged in the FAPOC in relation to Ms Bowyer/Newcrest at par 68, 69, 72, 75, 77, 78, 80 and 81. The case articulated in relation to Ms Bowyer is particularly weak and I consider the submissions of Newcrest above at par 174 are correct, namely that the obvious inference that arises from her behaviour is that she intended to comply with the Department's request, not to deceive anyone. There is no basis for the inference in par 69 of the FAPOC that by sending to Mr Capnerhurst an email on 20 May 2009 Newcrest intended that the old first page of the renewal application be removed or substituted by the new first page. That inference is said to arise from the email from Ms Bowyer dated 20 May 2009. That email said the amended page 1 was attached. No inference of any sort arises from that email.

1. Whether Ms Bowyer was aware of the content of the Policy on Renewal of Exploration Licences for minerals (exhibit A section D tab 2) printed off for this case on 14 August 2013 expressed to be effective from 1 November 2004, is not material for the reasons I have given above in par 196. This policy does not confirm that Mr New's discretion was fettered by what the ETC did. Knowledge of Ms Bowyer, if it existed, that matters were referred to the ETC within the Department is a neutral factor.

1. Paragraphs 71 and 72 of the FAPOC refer to the new special circumstances submission and allege that Newcrest intended that the old submission be removed and replaced by the new submission so that the latter appeared to have been lodged with the Department on 24 March 2009. The email from Ms Bowyer to Mr Capnerhurst dated 25 May 2009 states that the amended renewal submission is attached as requested with new figures for years 3 to 5 added. There can be no inference based on this evidence of an intention attributed to Ms Bowyer as reflected in par 72.

1. A number of matters are said to arise by inference in relation to Ms Bowyer in par 75. How Ms Bowyer's knowledge as an employee of Newcrest as to the internal working of the Department can be inferred simply from her position as Australian Tenement Manager for Newcrest is not established by that assertion. There is no evidence of collusion arising explicitly or implicitly between Ms Bowyer and any of the named departmental officers. No inference based on Jones v Dunkel can arise in relation to the absence of direct evidence from Ms Bowyer because an adverse inference is not already available on the evidence.

1. The FAPOC are drafted and GCR's case was presented on the basis all of the named persons were involved in the making of fraudulent misrepresentations. I have found that the case against Mr New and Ms Bowyer is not established and to a large extent also in relation to Mr Capnerhurst and Mr McDonald. I will briefly consider the allegations in the FAPOC in relation to each.

1. If follows from my finding above that no representations as defined in par 76 of the FAPOC were made by Mr Capnerhurst contrary to what is alleged in the FAPOC at 82.

1. The allegation in par 83 that Mr Capnerhurst removed the old first page and attached the new first page is not established by inference, held above at par 192. The allegation in par 84 of the FAPOC that the new first page was lodged out of time and was not the subject of Ms Bowyer's certification has no legal consequence as I concluded in relation to ground 1. Nothing therefore flows from this allegation as to Mr Capnerhurst's knowledge. No representations as alleged in par 85 were made by him. The documents cited in particulars in par 86 do not establish the matters known to Mr Capnerhurst over and beyond an understanding he is likely to have that the matter would go to the ETC. The basis of the allegation in par 87, 88 and 90 (in relation to Mr Wood) is not established for the reasons stated above. There was no need for Mr Capnerhurst to correct misrepresentations he knew to be false or misleading as alleged in par 91. There is no basis for the application of the principle in Jones v Dunkel to give rise to any adverse conclusion in the absence of direct evidence from Mr Capnerhurst.

No fraudulent misrepresentation by Mr McDonald

1. The FAPOC par 92 alleges knowledge of Mr McDonald that the representations were false and misleading arising by inference from his actions as reflected on the file. He prepared a minute paper to the ETC on or about 2 June 2009. His actions contributed to documents sent to the ETC stating that the term sought by Newcrest was five years (par 93). That Mr McDonald knew he was making fraudulent misrepresentations through his actions is alleged in the FAPOC par 94 and 95 with such knowledge to be inferred from the Department's policy and procedure.

1. My findings in relation to several issues above mean that Mr McDonald also did not engage in fraudulent misrepresentation. There is no basis for the principle in Jones v Dunkel to give rise to any adverse conclusion in the absence of direct evidence of Mr McDonald.

1. GCR has not established its case as set out in par 129. GCR is unsuccessful on this ground also. This summons should be dismissed.

Operation of privative clause

1. Section 137 of the Mining Act as at June 2009 provided:

137 Limitation of challenges to decisions with respect to authorities

(1) The cancellation of an authority, or the grant or refusal of an application for an authority or the renewal or approval of the transfer of an authority, cannot be challenged in any legal proceedings commenced later than 3 months after the date on which notice of the cancellation, grant or refusal is published in the Gazette.

(2) A notice lodged under section 130 cannot be challenged in any legal proceedings commenced later than one month after the date on which notice of its lodgment is published in the Gazette.

(3) This section has effect despite any other Act, but does not apply so as to affect:

(a) any appeal from proceedings commenced within the period of 3 months referred to in subsection (1) or, in the case of proceedings relating to a notice referred to in subsection (2), the month referred to in subsection (2), or

(b) the operation of section 128.

1. It is not disputed that the proceedings were commenced later than three months after the date on which notice of the renewal of EPL 1024 was published in the government gazette on 4 December 2009. The Class 8 summons was filed in the Court on 25 August 2012. The Respondents relied on s 137 to argue these proceedings are statute-barred.

1. GCR submitted that s 137 was not a bar to the proceedings relying on Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [55]. Section 137 should be read down so as to preserve the supervisory jurisdiction to review an administrative decision for jurisdictional error. The finding to that effect in a similar case Brown v Randwick City Council [2011] NSWLEC 172; (2011) 183 LGERA 382 at [39] should apply in this matter also. It is not readily apparent that the finding in Brown does apply, as the Respondents submitted. Given my conclusion that the proceedings should be dismissed it is unnecessary that I resolve whether the privative clause in s 137 of the Mining Act applies to prevent this challenge.

Orders

1. The Court makes the following orders:

(1)   The Applicant's Class 8 summons is dismissed.

(2)   Costs are reserved.

(3)   Exhibits to be returned.

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Amendments

03 September 2014 - "Second Respondent" omitted from counsels' appearances

Amended paragraphs: Coversheet

Decision last updated: 03 September 2014