Gold and Copper Resources Pty Ltd v Minister for Resources and Energy
[2014] NSWLEC 17
•26 February 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: Gold and Copper Resources Pty Ltd v Minister for Resources and Energy [2014] NSWLEC 17 Hearing dates: 26 February 2014 Decision date: 26 February 2014 Jurisdiction: Class 8 Before: Craig J Decision: 1. Refuse application to amend Summons so as to include paragraphs 49 to 53 of the proposed Amended Summons.
2. Orders otherwise as set out in [25]-[26]
Catchwords: PRACTICE AND PROCEDURE - leave to amend Summons - further ground challenging validity of mining leases - whether leases purport to sanction past mining purpose activities - whether s 6 of the Mining Act 1992 imposes a constraint upon the Minister's power to grant a mining lease - mining leases granted by the Minister only purport to operate prospectively - whether claim articulated in Amended Summons is fairly arguable - application to amend Summons refused Legislation Cited: Civil Procedure Act 2005 (NSW)
Mining Act 1992 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175
Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261
Gold and Copper Resources Pty Limited v Minister for Resources and Energy [2013] NSWLEC 66
Horton v Jones (No 2) (1939) 39 SR (NSW) 305Category: Procedural and other rulings Parties: Gold and Copper Resources Pty Ltd (Applicant)
Minister for Resources and Energy (First respondent)
Cadia Holdings Pty Ltd (Second respondent)Representation: A Hemmings (Applicant)
M Hill (solicitor) (First respondent)
N Williams SC with S Free (Second respondent)
Hones La Hood Lawyers (Applicant)
I V Knight, Crown Solicitor (First respondent)
Allens Linklaters (Second respondent)
File Number(s): 80854 of 2013
ex tempore Judgment
By a summons filed on 1 November 2013, Gold and Copper Resources Pty Limited (Gold and Copper) seeks to challenge, by way of judicial review, the decision of the Minister to grant two mining leases to Cadia Holdings Pty Limited (Cadia), the second respondent.
The proceedings were fixed for final hearing on 25 and 26 February 2014. That hearing was vacated by Sheahan J on 13 February. His Honour did so in response to a notice of motion that had been filed by Gold and Copper on 7 February. Not only did that notice of motion seek to vacate the hearing dates but also sought leave to amend the summons that had been filed in November last. It is the application for leave to amend the summons that is now before me.
Mining Leases 1689 and 1690 (ML 1689 and ML 1690) were granted by the Minister on 10 September 2013. Applications for those Leases were made by Cadia in September 2012, identified as MLA 439 and MLA 440 respectively.
The summons filed by Gold and Copper on 1 November last was in a form required by Pt 59 of the Uniform Civil Procedure Rules 2005 (NSW). As r 59.4 required, the grounds upon which the validity of ML 1689 and ML 1690 were challenged were stated in the summons. That statement took the form of a pleading. The pleading identified a single basis for challenging the validity of each Mining Lease, namely that each Lease had been granted in breach of the provisions of s 58(1)(c)(i) of the Mining Act 1992 (NSW).
That single ground of challenge was the basis upon which the proceedings had been fixed for hearing in February. The proposed Amended Summons seeks to add four further grounds upon which the validity of one or both of the Mining Leases is challenged. For his part, the Minister has indicated that he neither consents to nor opposes the amendments sought. Cadia accepts that the summons may be amended to plead three of the four additional grounds of challenge upon which Gold and Copper seeks to rely. However, Cadia opposes a fourth ground, the terms of which I will shortly identify.
The principles to be applied in an application of the present kind are not in dispute. Subsections (1) and (2) of s 64 of the Civil Procedure Act 2005 (NSW) enable the Court "at any stage of the proceedings" to amend or give leave to make all necessary amendments to a document or documents in the proceedings for the purposes, among others, of determining the real questions raised in the proceedings and avoiding a multiplicity of proceedings.
The discretion afforded by s 64 must be exercised in accordance with the overriding purpose expressed in s 56 of the Civil Procedure Act 2005 so as to facilitate "the just, quick and cheap" resolution of the real issues for determination. In turn, implementation of that overriding purpose is, for present purposes, informed by the provisions of ss 57 and 58. The latter section requires that when determining an application for amendment of any proceedings, the Court must act in accordance with the dictates of justice.
Matters of relevance in giving effect to these provisions include, among others, consideration of the circumstance in which the application is brought, the degree to which any delay has arisen from circumstances beyond the control of the parties, the prejudice to the applicant if leave is refused and the prejudice to the respondent if leave is granted. Also to be considered is the administration and management of the Court's business.
These are all factors that are regularly considered in applications of the present kind. I do not recite, but have regard to, the principles directed to their application as formulated in a number of decisions of this and other courts, including those principles articulated by the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 and the observations of the Full Court of the Federal Court of Australia in Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261 at [51].
The ground of challenge presently in contention is that pleaded in paragraphs 47 to 53 of the proposed Amended Summons. Although I will identify its elements shortly, in substance the ground pleads that mining activity that is the subject of each of MLA 439 and MLA 440 is activity that has already been undertaken. The Mining Act, so it is pleaded, does not authorise the grant of any mining lease for mining purposes that have already been undertaken. Paragraphs 47 to 53 of the proposed Amended Summons are pleaded under the heading "[n]o power to approve retrospective mining lease", which reflects the essence of the claim sought to be made in those paragraphs.
Cadia submits that the amended pleading in those paragraphs should not be permitted as it does not disclose or demonstrate a claim that is fairly arguable. That any claim, whether initially pleaded or proposed to be pleaded by way of amendment, should be fairly arguable reflects a proper summary of the principle to be applied when considering either a stike-out application or an applicaiton to add an additional claim. So much is apparent from the decision in Horton v Jones(No 2) (1939) 39 SR (NSW) 305 at 309-310 and more recently stated succinctly in the judgment of the Chief Judge of this Court in Gold and Copper Resources Pty Limited v Minister for Resources and Energy [2013] NSWLEC 66 at [27].
Expressed in more detail, the claim pleaded in paragraphs 47 to 53 of the proposed Amended Summons has these elements:
(i) that the Minister has the power to grant a mining lease for mining purposes;
(ii) that the power to grant a lease can only be exercised if none of the activities that are the subject of the mining lease, have yet to be undertaken;
(iii) once those activities that are the subject of the application for a mining lease have already commenced as they have in the present case, the Minister no longer has the power to grant the lease for mining purposes that reflect those activities; and
(iv) if those completed or commenced activities are the subject of the purported mining lease then the lease is invalid.
Cadia submits that there is no sound basis on which to found the present ground of invalidity. The claim by Gold and Copper, so Cadia submits, is founded neither in fact nor in law.
The power to grant a mining lease is expressed in s 63 of the Mining Act. That section relevantly provides:
"63 Power of decision-maker in relation to applications
(1) After considering an application for a mining lease the decision maker:
(a) may grant to the applicant a mining lease over all or part of the land over which a lease was sought, or
(b) may refuse the application."
The remaining subsections of s 63 identify aspects of the decision making process. Nothing of present relevance turns upon those subsections.
The evidence before me establishes that MLA 439 and MLA 440 were the applications upon which the Mining Leases in contention were founded. Paragraphs 49 to 53 of the pleading by Gold and Copper do not seek to impugn those applications. As a consequence and for the purpose of considering this claim of invalidity of the Mining Leases, it must be accepted that the Minister had before him two mining lease applications which, conformably with s 63, he had power to determine and did in fact determine.
Mining leases ML 1689 and ML 1690 are in evidence before me. As each lease is, for present purposes in identical terms, it is sufficient to refer to the terms of ML 1690. That lease is expressed in the form of a deed. It is dated 10 September 2013. The Minister and Cadia are identified as the parties to the deed. After reciting the fact than an application for the Lease had been made over lands that are identified, the words of grant are expressed as follows:
"Now this Deed witnesseth that in consideration of the observance and performance of the covenants contained in this Deed the Minister in pursuance of the provisions of the Act does hereby demise and lease to the leaseholder all that piece or parcel of land ...".
The land to which the lease relates is then described both by area and by reference to a plan that is annexed to the lease.
The terms of the Lease continue by requiring that the demised land be held:
"together with any appurtenances thereon subject to (a) such rights and interests as may be lawfully subsisting therein which may be reserved by the Act at the date of the Deed and (b) such conditions, provisos and stipulations that are contained in this Deed unto the leaseholder from and including the date of this Deed for a period of 21 years for the purpose as stated and for no other purpose".
The latter reference to "purpose" is clearly a reference to the words of grant which, after identifying the land to which the lease relates, identify its use as being for "mining purposes".
There are a number of conditions that form part of the lease, one of which, Condition 3, is headed "Mining Operations Plan". Paragraph (a) of Condition 3 requires that mining operations must not be carried out otherwise than in accordance with a Mining Operations Plan that has been approved by the Director-General. The clause then identifies matters that must be the subject of the Mining Operations Plan.
There is nothing within the terms of the Lease granted by the Minister that either expressly or by implication identify and sanction or purport to sanction any past activity within the Lease area. By its very terms, the Lease operates from the date upon which it was granted. Those terms, on their face, govern the entitlement of Cadia to conduct activities on the land to which the Lease relates during the term of that Lease.
Gold and Copper relies upon the provisions of s 6 of the Mining Act. The section proscribes the carrying out of any "mining purpose specified for the purpose of [the] section except in accordance with an authorisation that is in force in respect of the land for the purposes carried out". Those mining purposes that are "specified" are identified in s 6(3) and include "the construction, maintenance or use" of any dam and the removal, stockpiling or depositing of overburden or tailings to the extent that it is associated with mineral extraction. These are activities alleged by Gold and Copper to have been carried out on the lands that are the subject of the two Mining Leases.
Gold and Copper submit that having regard to that section, the Minister could not lawfully have granted ML 1689 or ML 1690. I do not accept that submission. Section 6 imposes no relevant constraint upon the Minister's power to grant a mining lease. The section does no more than identify conduct that contravenes the Act unless a mining lease or other authority is held authorising the carrying out of specified "mining purposes". It says nothing of the scope of the Minister's power to grant a lease under s 63 in the terms in which the present Mining Leases were granted.
It seems to me that the provisions of the Leases to which I have referred, read in the context of s 63, render it unnecessary to consider the other submissions by Gold and Copper directed to the operation of a mining lease on future, rather than past, mining activities. To the extent that other provisions of the Act reinforce the view already expressed that a mining lease can only govern activity to be carried out upon the demised land following the grant of a lease, they are consistent with the exercise of power by the Minister when, under s 63 of the Mining Act, he granted ML 1689 and ML 1690.
The other grounds of challenge advanced in the proposed Amended Summons identify different bases upon which the Minister's conduct is sought to be impugned, having regard to the manner in which MLA 439 and MLA 440 were framed and determined. However, those grounds must properly be considered independently of the ground pleaded in paragraphs 49 to 53 of the proposed Amended Summons. That accords with the manner in which the pleading is framed.
For these reasons, I am not persuaded that the claim sought to be articulated in paragraphs 49 to 53 is fairly arguable. I refuse the application to amend the Summons to include a claim in the terms pleaded in those paragraphs.
Having announced my decision to refuse leave to amend the Summons to include paragraphs 49 to 53, the parties have agreed upon orders for the disposition of Gold and Copper's notice of motion and for the further preparation of the matter for hearing. They have reduced their agreed orders to writing in the form of short minutes of order that are dated today.
I make orders in accordance with the short minutes of order dated 26 February 2014, initialled by me and placed with the papers.
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Decision last updated: 12 March 2014
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