Gold and Copper Resources Pty Ltd v The Minister for Resources and Energy - [2012] NSWLEC 149

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Gold and Copper Resources Pty Ltd v The Minister for Resources and Energy [2012] NSWLEC 149
Hearing dates: 5 June 2012
Decision date: 06 July 2012
Jurisdiction: Class 8
Before: Craig J
Decision:
1. The applicant's notice of motion dated 3 May 2012 is dismissed.
2. The applicant is to pay the costs of each respondent of that notice of motion.
3. The proceedings are listed before the List Judge on Friday 13 July 2012 for directions.
4. Exhibits may be returned.

Catchwords: PRACTICE AND PROCEDURE - proceedings challenging validity of determination to renew mining exploration license - motion seeking leave to further amend points of claim - amendment seeking to allege fraudulent misrepresentation - need for particularity and specificity in pleading such a claim - requirement by general law principles even where not a court of strict pleading - failure to plead nexus between alleged fraudulent conduct and the decision sought to be impugned - particulars of fraud otherwise deficient- motion dismissed
PRACTICE AND PROCEDURE - history of proceedings - delay - overriding purpose under s 56 of the Civil Procedure Act 1995 - dictates of justice under s 58 of the Civil Procedure Act 1995 - applicant's case not prejudiced by refusing leave to amend points of claim
Legislation Cited: Aboriginal Land Rights Act 1983
Civil Procedure Act 2005
Mining Act 1992
Uniform Civil Procedure Rules 2005
Cases Cited: Banque Commerciale SA (In Liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Brown v Bennett (No 2) (2002) 1 WLR 713; [2002] 2 All ER 273
Martin v State of New South Wales [2011] NSWLEC 50
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
NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730; (2003) 130 FCR 210
Category: Interlocutory applications
Parties:
Gold and Copper Resources Pty Limited (Applicant)

The Minister for Resources and Energy (First Respondent)
Newcrest Mining Limited (Second Respondent)
Representation:
T Alexis SC (Applicant)

T S Hale SC with J B Maston (First Respondent)

I Jackman SC with S A Lawrence (Second Respondent)
Corrs Chambers Westgarth (Applicant)

I. V. Knight, Crown Solicitor (First Respondent)
Allens Arthur Robinson (Second Respondent)

File Number(s): 80736 of 2011

Judgment

An allegation of fraudulent conduct is a serious allegation to make at any time. No less is that so in pleadings filed for the purpose of conducting civil litigation.

Gold and Copper Resources Pty Limited (GCR) wishes to amend a claim in order to allege that the conduct of an employee of Newcrest Mining Limited (Newcrest), pertaining to the renewal of an exploration licence, was conduct that constituted fraudulent misrepresentation. GCR also wishes to allege that an employee within the Government department formerly known as the Department of Primary Industries (the Department), being the Department for whom the Minister was responsible, also engaged in conduct that constituted fraudulent misrepresentation.

Newcrest was the holder of an exploration licence under the Mining Act 1992, identified as EL 3856. The Licence related to an area of land generally within the Cadia Valley, near Orange in Central Western New South Wales. Newcrest presently operates mines in that area. Gold and copper are minerals won from those mines.

By notice of motion filed on 3 May 2012, GCR seeks leave to further amend its present claim to include those new allegations. Both Newcrest and the Minister oppose the grant of leave.

Factual background

EL 3856 had been held by Newcrest for some years. The Licence had been renewed in 2005 for a term that expired on 20 May 2009. On 24 March 2009, Newcrest applied to renew that Licence. Renewal was sought over the same area of land as was included in the expiring licence.

It is sufficient for background purposes to record that EL 3856 was renewed on 14 March 2011 for a term expiring on 20 May 2014. That is a period of five years from the date upon which the previous term had expired. The renewal was granted by Robert New in his capacity as Team Leader, Western Region with the Department. As the holder of that position, Mr New was delegated the function of the Minister to determine the renewal application. Notice that EL 3856 had been renewed was published in the Gazette on 20 May 2011.

Statutory provisions

By s 113(1) of the Mining Act, the holder of an "authority" (defined in that Act to include an exploration licence) is authorised to apply for the renewal of the authority. Subsection (2) of the section provides:

"(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."

Section 114(1) identifies the power of the Minister to renew an exploration licence. By subsection (3), the period for which an authority may be renewed is limited on any one occasion so as not to exceed five years. A further limitation is imposed upon renewal in respect of the number of land units for which an exploration licence may be renewed. That limitation is expressed in subsection (6):

"(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."

There is a further provision of s 114 that needs to be noticed for the purpose of understanding the claims made by GCR. Subsection (5) of the section allows the area of land over which an exploration licence is renewed to differ from the area of land over which 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."

The provisions of the Mining Act to which I have referred were those operating at the time of the events referred to in this judgment. Some of those provisions have since been amended.

Procedural background

The present proceedings were commenced by summons filed on 19 August 2011. Relevantly, the relief sought was for a declaration that the decision to renew EL 3856 was void. An order was also sought "in the nature of certiorari that the decision be set aside." Newcrest was not joined as a respondent in the proceedings at that time. An amended summons seeking relief in similar terms, but in which Newcrest was joined as a second respondent, was filed on 4 October 2011.

Points of Claim were filed on that same day. They plead invalidity of EL 3856 on the ground that land had been included in the License area, as renewed, that had not been included in the Licence area immediately before its renewal. As a result, so it was pleaded, the renewal has been granted in breach of s 114(5).

A further amended summons was filed, by leave, on 23 February 2012. The terms of the declaration previously sought were recast, as was the proposed order in the nature of certiorari, although the substance of the orders sought did not change. However, on that same day Amended Points of Claim were filed, also pursuant to leave granted by the Registrar. Those Amended Points of Claim not only maintained the claim of invalidity that had previously been made but added three further bases upon which invalidity was alleged. Each of those three new bases of claim focused upon the process undertaken leading to the decision to renew the EL 3856 for a period of five years from the date of expiry of the previous term.

The first additional claim alleged that the Minister lacked power under s 114(1)(a) of the Mining Act to renew EL 3856 for a term that differed from the term sought in the application for renewal lodged on 24 March 2009. The renewal application as lodged sought an additional term of two years. It was accompanied by a "special circumstances" submission, seeking to have the application renewed for the same number of land units as those to which the expiring licence related (cf s 114(6) of the Mining Act). The submission identified works proposed over the two years for which renewal was then sought.

On 20 May 2009, Newcrest sent to the Department a substituted first page of the multi page form, known as Form 9, completed for the purpose of making the renewal application. The substituted first page contained the same detail as was contained on the form originally lodged, except that the period for which renewal was sought was altered from two years to five years. Five days later, Newcrest forwarded to the Department a further "special circumstances" submission which added to the text of the earlier submission details of work proposed and exploration expenditure to be incurred for each year during the proposed five year term.

GCR asserts that there was no power to amend an application for renewal as Newcrest purported to do. As a consequence, the only renewal application capable of determination was that originally lodged on 24 March 2009 and the only power of the Minister to approve that application was to do so in accordance with the term sought, namely two years. As a result, the purported renewal for a five year term was invalid.

The second additional claim alleged that the renewal had been granted in breach of s 114(6) of the Mining Act. As I have recorded, the area for which renewal was sought was the same area as was the subject of the expiring licence. It is pleaded that the renewal could only be granted for that area if special circumstances were shown to exist, justifying that renewal for an area in excess of half the area covered by the expiring licence. The pleading further alleges that there were no "special circumstances" to which the Minister, by his delegate, directed his attention before granting renewal. Alternatively, it is pleaded that the "special circumstances" submission relating to the two year period of renewal to which I have earlier referred did not provide "probative evidence" enabling the Minister to be satisfied that special circumstances did, in fact, exist.

The third additional claim was pleaded under the heading "False or Misleading Information in Application". In its "special circumstances" submission, Newcrest had stated that in the years 2009-2010, work proposed included a "GoviEx Super IP" survey across the prospect area in conjunction with GCR. This statement was repeated in the further "special circumstances" submission forwarded to the Department on 25 May 2009 after the renewal term sought had been amended from two years to five years.

GCR asserts that at the time at which these statements were made, it held the exclusive right to use the GoviEx Super IP survey system in the region of the Cadia Mine and that Newcrest was required to negotiate with GCR to permit use of that survey system. Shortly after the statements were made by Newcrest, negotiations between Newcrest and GCR for the use of that survey system ceased. GCR further alleges that at no time prior to renewal of EL 3856 did Newcrest advise the Department that it no longer proposed or was able to conduct that particular form of survey. GCR asserts that Newcrest was obliged so to do by the provisions of the Mining Act and that repetition of the proposed form of survey in the second "special circumstances" submission was "false or misleading".

In the result, it is pleaded that the Minister, through his delegate, was unaware that Newcrest did not intend to carry out this particular form of survey as part of its exploration work. Newcrest's stated intention to use this form of survey and its failure to indicate that it was no longer able to do so is said to be apparent from the Department's Minute Paper recommending renewal of the application for a period of five years. As a consequence, GCR pleads that renewal of the Licence by the Minister's delegate was invalid.

Each of the Minister and Newcrest had filed Points of Defence both to the original Points of Claim and also to the Amended Points of Claim. The defences had been filed on behalf of each of the respondents by 28 March 2012. Directions for the filing of evidence by the parties had also been given.

This was the state of proceedings when, on 3 May, GCR filed its notice of motion to further amend its Points of Claim. Before turning to the amendments sought, it is appropriate to refer to other aspects of the procedural history in this Court.

Regrettably, that history reveals the filing of no less than seven notices of motion prior to the present notice of motion. The majority of those motions have been directed to disputes among the parties concerning the production of documents.

It seems that informal discovery was first agreed to be undertaken between the legal representatives of GCR and the Minister respectively. This resulted in documents being produced from Departmental files on what was later described as "a piecemeal basis". Ultimately, an order was made by the Registrar requiring that the Minister provide verified discovery of his documents. The verified list was provided on 20 April 2012. Apart from two documents relating to the appointment of two persons to positions within the Department, all documents that were the subject of the verified list had been provided to GCR by 23 January 2012.

The Further Amended Points of Claim

Aside from minor drafting amendments to the bases of claim identified in the Amended Points of Claim filed in February last, the Further Amended Points of Claim upon which GCR seeks leave to rely contains a new basis of claim which is pleaded under the heading "Renewal Procured by Fraudulent Misrepresentation". The facts pleaded for the purpose of founding this claim are substantially the same as those pleaded in the Amended Points of Claim filed in February, save for the additional reference to emails accompanying documents to which I have earlier referred. Those facts pleaded for the purpose of sustaining the new claim may be shortly stated.

The replacement first page of the Form 9 application for renewal of EL 3856 was forwarded by email on 20 May 2009 from a named employee of Newcrest (the Newcrest employee) to a named employee within the Department (the Department employee). It will be remembered that the replacement page changed the term of renewal sought from two years to five years. The email of 20 May, which was in evidence before me, states that the replacement page was sent at the request of the Department employee.

Similarly, the "special circumstances" submission, amended to include material relevant to a five year term, was sent by email on 25 May 2009. The email was from the same Newcrest employee who had forwarded the email of 20 May and it was directed to the same Department employee. The submission retained the date of March 2009 on its coversheet and was titled in the same manner as the submission that had accompanied the renewal application when lodged in March, albeit that the content of the later submission had added reference to exploration works for the full five year term, as I have earlier described. Each of the two emails to which I have referred have included in their title the words "renewal amendment". The pleading acknowledges that the Department employee to whom the emails were addressed was not Mr New.

Having pleaded these facts, GCR alleges that a number of representations were conveyed to the Minister or the Minister's delegate. Its allegation in this regard is pleaded in [49] as follows:

"49. The Renewal Application containing the New First Page and the Further Submission, conveyed the following representations to the Minister or the Minister's delegate:

(a)that the Renewal Application seeking the renewal of EL 3856 for a period of 5 years had been lodged with the Director-General within the time prescribed by s 113(2) of the Mining Act and on or about 24 March 2009;

(b)that the Renewal Application seeking the renewal of EL 3856 for a period of 5 years had been certified as correct at the time of lodgement on or about 24 March 2009;

(c)that the Further Submission had been lodged with the Renewal Application seeking the renewal of EL 3856 for a period of 5 years, within the time prescribed by s 113(2) of the Mining Act and on or about 24 March 2009; and/or

(d)that the particulars contained in the Further Submission had been certified as correct at the time of lodgement on or about 24 March 2009."

It is then pleaded that these representations were false and known to be false by Newcrest, by reason of the employment position and knowledge of its named employee. Paragraph 53 pleads that the representations were made "so as to procure the renewal of EL 3856 for a period of five years instead of a period of two years."

The pleading then proceeds to impugn the conduct of the Department employee in [56] - [58]. It is necessary to quote those paragraphs in full:

"56. Further and at or about the time of receiving each of the emails from Newcrest on 20 and 25 May 2009, [the Department employee], in the course of his employment with the Department:

(a) knew that the Renewal Application seeking the renewal of EL 3856 for a period of 5 years had not been lodged within the time prescribed by s 113(2) of the Mining Act, but had been received by email on 20 May 2009;

(b) knew that the Renewal Application seeking the renewal of EL 3856 for a period of 5 years had not been certified as correct;

(c) knew that the Further Submission had not been lodged with the Renewal Application seeking the renewal of EL 3856 for a period of 5 years, within the time prescribed by s 113(2) of the Mining Act, but had been received by email on 25 May 2009;

(d) knew that the particulars contained in the Further Submission had not been certified as correct,

and was therefore aware or ought reasonably to have known, that the Renewal Application seeking the renewal of EL 3856 for a period of 5 years and the particulars contained in the Further Submissions could not be considered for renewal pursuant to s 114(1) of the Mining Act, because the said Renewal Application had been lodged out of time.

Particulars

[The Department employee's] knowledge of these matters is to be inferred from his position in the Geological Survey Unit of the Department, his receipt of the emails pleaded in paragraphs 44 and 46 above, and his conduct pleaded in paragraphs 54 and 55 above.

57. In the premises, [the Department employee] in the course of his employment with the Department either participated in or was knowingly concerned in the making of the false Representations by Newcrest to the Minister or the Minister's delegate.

Particulars

The Applicant repeats paragraph 56 above. EL 3856 was purportedly renewed by the Minister on 14 March 2011 for a period of 5 years until 20 May 2014, rather than for a period of 2 years until 20 May, 2011.

58. Alternatively, [the Department employee] in the course of his employment with the Department either made each of the false Representations to the Minister or the Minister's delegate or caused them to be made with reckless disregard as to their truth or falsity."

As I have earlier recorded, the relief sought is that the decision of the Minister was void and of no legal effect. In the context of the new basis of claim, the alleged invalidity of the Minister's decision is pleaded in [59] as follows:

"59. In the premises, if the Minster purportedly renewed EL 3856 on 14 March, 2011 for a period of 5 years until 20 May, 2014 on the basis that the Renewal Application for a period of 5 years had been lodged in accordance with s 113(2) of the Mining Act and/or was satisfied that special circumstances existed that justified the Renewal for a period of 5 years, the Renewal was procured by the fraudulent Representations as aforesaid and is invalid and of no force or effect."

Respondents' grounds for opposing leave

There are three bases upon which each of the Minister and Newcrest oppose the grant of leave sought by GCR:

(i) the new claim, as pleaded, does not disclose a reasonable cause of action to found invalidity of the decision to renew the exploration licence founded upon the fraud alleged;

(ii) the claim is not pleaded with the particularity required of a claim alleging fraud;

(iii) the delay in pleading the claim weighs against the exercise of discretion to allow the amendment sought by GCR.

Before turning to consider these matters, it is appropriate to record the principles that attend the pleading of allegations of fraud in a case of the present kind.

General principles

In recording the procedural history of these proceedings, I have used the expression "pleading" to describe the Points of Claim, that in its various iterations, has been filed by GCR. That description is apt for present purposes, notwithstanding that this Court is not a court of strict pleading.

The jurisdiction of this Court to entertain the present proceedings appears to be founded in s 293(1)(q) of the Mining Act. That provision enables the Court to hear and determine -

"(q) any question or dispute as to:

(i)the validity of an authority ... or

(ii)the decision of a decision-maker in relation to an application for the ... renewal ... of an authority ... ".

Such proceedings are in the nature of judicial review (Martin v State of New South Wales [2011] NSWLEC 50 at [5]; Martin v State of New South Wales(No 14) [2012] NSWCA 46 at [5]).

In judicial review proceedings (among others), it is the Court's practice to require an applicant to frame its claim in 'points of claim' as if that document was one to which principles of pleading applied. In the present context, the proper formulation of a claim in a manner consistent with those principles is of considerable importance.

Cases of high authority make it clear that if fraud is alleged in litigation, it must be pleaded specifically and with particularity (Banque Commerciale SA (In Liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 per Mason CJ and Gaudron J at 285). Apart from the imposition of this requirement by the general law, in the case of a pleading, strictly so-called, the obligation is imposed by Pt 14 r 14.14 of the Uniform Civil Procedure Rules 2005.

The general law requirement for specificity and particularity when alleging fraud has been applied in proceedings that do not require formal pleadings. In Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201 the Court of Appeal was hearing an appeal from this Court in which a claim under the Aboriginal Land Rights Act 1983 had been brought by the respondent Land Council. Among the claims made by the Land Council was one alleging that a lease of land in respect of which a land claim had been made was procured by the conduct of a third party as a consequence of which the lease was "tainted with fraud" and thereby void. When addressing the need for specificity in making a claim of fraud, the Court (Kirby P, Meagher and Handley JJA) said in a joint judgment (at 206):

"Because of the reasons which sustain that need [for specificity in the pleading of fraud], it is one which inheres in courts as such. It is not confined to the Supreme Court or to a court of strict pleading. It is a rule of practice long established which protects litigants - whether a Minister of the Crown or an ordinary citizen - who are brought before a Court to answer a charge of fraud."

Earlier in the judgment in Tweed Byron, their Honours had discussed the rationale for the principle of specificity and particularity when alleging fraud. Before citing authority in which the principle had been discussed, they said (at 203):

"In the pleading of fraud, some requirements of the law are clear beyond argument. These requirements are not only rules of pleading and practice established by decisions of the courts. It is a serious matter to allege fraud against a party in pleadings to which attach the privileges incidental to court proceedings. Reports of such allegations may be recounted in the community and through the public media. They may do great harm to a party before a word of evidence has been offered and submitted to the searching scrutiny of cross-examination or to rebuttal."

No reasonable cause of action pleaded

As I have earlier indicated, the present proceeding by GCR engages the Court's jurisdiction by reason of the claim that the decision of the Minister, by his delegate Mr New, to renew EL 3856 was invalid. There must therefore be a relevant and adequately pleaded nexus between the fraudulent conduct that is alleged and the decision of Mr New to renew the Licence. I have earlier noted that Mr New is not the Department employee against whom the allegation of fraudulent conduct is made.

The need to plead the nexus that I have identified is apparent from the decision in Tweed Byron. There, the Land Council had submitted, and the trial judge had accepted, that it did not matter whether or not the decision-maker was activated by the fraudulent conduct alleged. The only relevant question, so it was submitted, was whether "the fraud or violation of the [legislation] was sufficient to impugn the transaction", the transaction in that case being the grant of a lease. That submission was not accepted by the Court of Appeal.

So much is apparent from two passages in the judgment of the Court. Their Honours said at (205):

"It is impermissible, in the light of the foregoing authorities, to make a general allegation that a 'lease' is void as tainted with fraud, expressed in a claim which names the Minister as a respondent and in proceedings in which the Minister is the only party with the relevant authority to grant the lease, yet without alleging what the fraud was, who was responsible for it and how the Minister's decision to grant the lease was tainted by that fraud."

Later in the judgment, their Honours said (at 206):

"At the stage at which argument stopped, we were not convinced that, in a claim against the Minister, it was sufficient to allege that the lease was tainted with fraud without alleging that the fraud had caused or procured the grant of the lease either because the Minister was a party to the fraud or the innocent victim of the fraud of others."

Applying the observations of the Court in Tweed Byron, the Minister and Newcrest submit that the pleaded claim of fraudulent misrepresentation is defective. This is so because it does not plead that Mr New's decision to grant the renewal of EL 3856 was, in fact, affected by the fraudulent representations that are otherwise pleaded. The respondents point to [59] of the proposed Further Amended Points of Claim in support of that submission. It is a submission that I accept as being correct.

Paragraph 59 of the pleading is expressed in conditional terms. That condition is explicit in [59] by use of the word "if" to qualify the basis upon which the determination by Mr New, as the Minister's delegate, was invalid.

In pleading a case of fraudulent misrepresentation, the critical and ultimate averment, as expressed in [59], does not link the fraudulent conduct alleged with the determination that is sought to be impugned. The paragraph does not plead the essential fact that Mr New did grant the renewal of the licence on the basis that the application for renewal was lodged within the time required by s 113(2) of the Mining Act and that the application then lodged was for a five year term. As the respondents submitted, the pleading does no more than make a conditional assumption of that fact. The pleading in that form cannot be accepted as appropriate to warrant the leave that is sought. Leave to file the Further Amended Points of Claim will therefore be refused.

In the event that I determined to refuse leave to GCR to file and serve its Further Amended Points of Claim having regard to the terms in which [59] was framed, the respondents have submitted that I should not grant leave to GCR to replead its claim founded upon fraudulent misrepresentation. For its part, GCR has foreshadowed that it may seek that leave although no application so to do was made.

The respondents' opposition to the grant of any leave is founded in the documentary evidence that was tendered before me. Each party tendered documents comprising either exchanges of correspondence or, more significantly, copies of documents obtained from the Department's records relating to EL 3856 and its renewal. These documents were tendered without objection by any party.

The first document of present relevance from the Department's file is a document entitled "Renewal of Exploration Licences Check Sheet". It appears to be a pro-forma document used for internal Departmental purposes. Beneath the heading of the document, space is provided to insert the licence number of the exploration licence for which renewal is being sought. In that space the present document contains the letters and figures "EL 3856".

On the Check Sheet, as printed, there are then consecutively numbered items requiring completion by the employee addressing each of those items. The printed words beside Item 2 are "Dealing checked by (Name)". Beside that Item there is provision for a date to be inserted and provision for an initial of the employee completing the Item. The form that was tendered shows that after the word "(Name)" there has been handwritten the name "R. New". That name is followed by the handwritten date "27/3/09". The initials "RN" are inserted beside that date. The only "Dealing" then existing in respect of EL 3856 was Newcrest's application for renewal of that Licence for a period of two years. In the absence of any evidence to the contrary (and none was tendered), it must be inferred that Mr New, as the Minister's delegate, checked the application for renewal (the "Dealing") and understood it to seek renewal for a two year period.

Mr New also signed a second document of present relevance entitled "Instrument of Renewal of Exploration Licence No. 3856 Held By: Newcrest Mining Limited" on 14 March 2011. He signed that document in his capacity as the Minister's delegate. The "[i]nstrument" identifies the term of renewal as being until 20 May 2014, that is five years from the exploration of the then current licence.

I do not understand it to be in contest that it was the same "R. New" who, as the Minister's delegate, checked the Licence renewal application on 27 March 2009 and also approved that application on 14 March 2011. Thus, there is evidence that Mr New was aware of an application for a two year term having been made at the time at which he determined that the licence should be renewed for a five year term. None of the critical conduct alleged against either the Newcrest employee or the Department employee is claimed to have taken place on or prior to 27 March 2009 when Mr New is recorded as having "checked" the renewal application. This documentary evidence weighs strongly against a claim that the conduct of the nominated employees fraudulently occasioned Mr New to believe that the application for renewal, when lodged, had sought a five year term.

Clearly, I do not determine the issue as if on a final hearing. However, the evidence available to determine the present application does not appear to me to provide a sound basis upon which to contemplate the grant of leave to GCR to replead this new basis of claim. It may well be that the state of the evidence, as presently known, caused GCR's legal advisors to plead [59] in the conditional manner reflected in that paragraph. So to do, as I have determined, does not properly identify a claim challenging the validity of Mr New's decision.

Lack of particularity

In light of my determination that GCR should not be given leave to file its proposed Further Amended Points of Claim, it is strictly unnecessary to determine the remaining two bases upon which the Minister and Newcrest pose the present notice of motion. However, as those matters have been argued, it is appropriate that I address them briefly.

In addition to the challenges directed to [59] of the Further Amended Points of Claim, the Minister focuses upon the allegation of fraudulent misrepresentation pleaded against the Department employee. The Minister submits that the proposed pleading failed to plead or provide particulars of the communication from the employee to Mr New, as the Minister's delegate, which constitutes the fraudulent misrepresentation alleged against that employee. In the absence of that matter being pleaded, the employee is not able to meet the allegation of fraud made against him.

The claims presently pleaded against the Department employee are relevantly found in [57] and [58] of the proposed pleading. Paragraph 56 alleges matters that the employee "knew or ought reasonably to have known" by way of representation to him by Newcrest. Paragraph 57 then alleges that the employee participated in or was knowingly concerned in the making of Newcrest's "false representations" to the Minister's delegate. In the alternative, [58] alleges that the same employee made the false representations to the Minister's delegate or caused those representations to be made "with reckless disregard as to their truth or falsity". The particulars given for the allegations made in [57] and [58] are the matters pleaded in [56].

There is substance in the Minister's submission. The pleading omits two important allegations necessary to permit an informed response to be made to the allegation of fraud. The omitted pleading or particulars are first, an allegation as to the means by which the allegedly false representations were conveyed or communicated to the Minister's delegate, and second, the terms in which those representations were made to the delegate. These allegations are necessary in order to determine whether the representation, alleged to be false, was made to the Minister's delegate. The allegations are also necessary in order to determine the basis upon which it is said that the representation was knowingly false.

For these further reasons, the claim against the Department employee is deficient in pleading a claim of fraudulent misrepresentation.

The Minister further challenges the adequacy of the proposed pleading, alleging fraud on the part of the Department employee, on the basis that the representations identified were made to the Minister's delegate "with reckless disregard as to their truth or falsity" ([58]). It is submitted that an allegation of fraud cannot be established by alleging recklessness. Reliance is placed in this regard upon the decision of Gyles J in NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730; (2003) 130 FCR 210 where his Honour said at [24]:

"24 Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit [citation of authorities omitted] or wilful blindness [citation of authorities omitted]."

While there would also appear to be substance in these submissions, I would prefer to decide the motion on the deficiencies of the proposed pleading that I have already identified. The present point, as if on dumurrer, is unnecessary to be determined at the present time.

On behalf of GCR, it was submitted that an allegation of fraud could be based on inference (Brown v Bennett (No 2) (2002) 1 WLR 713; [2002] 2 All ER 273). The inference upon which GCR relies is that Mr New was unaware, at the time of granting renewal of EL 3856, that the application for renewal lodged conformably with s 113 of the Mining Act was for a two year term and not for the five year term granted by him. That "gap" in his knowledge, presumably claimed to be induced by the conduct of either or both the Newcrest employee and the Department employee, is an inference to be inferred from the manner in which the process of discovery was undertaken.

I have earlier described the fact that initially a process of informal discovery was undertaken. The Department's "file" was initially produced and did not contain a copy of the email of May 2009 to which was attached the amended first page of the Form 9 Renewal Application. Further, it did not contain a copy of the email to which there was attached the further "special circumstances" submission. The original first page of the Form 9 Renewal Application which had nominated a two year term for renewal was not, and has not since been, produced. It was not until later and under threat of an order for verified discovery that the emails to which I have referred were produced, along with a number of other documents. Those documents had been provided by 23 January 2012.

The piecemeal fashion in which documents were provided by the Department was less than satisfactory. It was this circumstance that caused the Registrar to order verified discovery. GCR does not challenge the adequacy of discovery made as a consequence of the Registrar's order.

While the manner in which documents were produced may be criticised, on the evidence before me that circumstance does not readily leave open the inference that the Minister's delegate, Mr New, did not have before him documents revealing that the application for renewal, as lodged in March 2009, sought a two year term. The "Check Sheet" to which I have earlier referred suggests that he was aware of that fact. In so saying, I am not determining the extent of material before and considered by Mr New. However, on the evidence, as it stands, there is an insufficient basis upon which to infer that the pleaded fraud was arguably the cause for Mr New being unaware of the amended term of the renewal applications and of the timing of that amendment.

Delay

Both respondents opposed the grant of leave sought by GCR on the basis of the delay that has occurred in making the present application. As I have determined that leave should not be granted for reasons earlier indicated, it is unnecessary to express a concluded view as to whether delay would have provided an independent basis for dismissing the notice of motion.

However, I do observe that the proceedings were commenced on 19 August 2011. GCR has once before been granted leave to amend its Points of Claim and has taken advantage of that leave. Whether further leave should be given, should that leave be sought, would require anxious consideration in light of the "overriding purpose" in the conduct of proceedings before the Court, as that purpose is expressed in s 56 of the Civil Procedure Act 2005.

It is also to be noticed that by s 137 of the Mining Act, the time in which proceedings may be brought, challenging the grant or refusal of an application to renew an authority, is limited to a period of three months after the date on which notice of the grant or refusal of the application is published in the Gazette. In the present case, the relevant notice was published in the Gazette on 20 May 2011. Almost 12 months passed before GCR filed its present notice of motion seeking leave to challenge the approval on the basis of fraudulent misrepresentation. A purpose of s 137 is to limit the period in which challenge to the validity of authority can be made in the interests of certainty. That purpose is achieved, where a challenge is made in the time limited by the provision, by the expeditious determination of that challenge. This is a factor relevant to the consideration of any further indulgence sought by any party which has the effect of delaying the final hearing of these proceedings.

In making these observations, I am conscious of the requirement to consider an application of the present kind so that its determination accords with the "dictates of justice": s 58 Civil Procedure Act. However, as the section provides, that requirement is, in turn, informed by a number of factors, including the provisions of s 56 of the Act, mandating the conduct of proceedings in a manner that is "just, quick and cheap."

Dismissal of the present notice of motion does not, to my mind, deny GCR the opportunity to have its challenge determined in accordance with the dictates of justice. The facts which it pleads pertaining to the date upon which the application for renewal of EL 3856 was lodged; the subsequent change to the term for which renewal was sought and the provision of a further "special circumstances" submission to the Department, are all components of the Amended Points of Claim upon which GCR is entitled to rely. These are facts upon which invalidity, by reason of breach of the Mining Act, is already alleged. These are the same foundational facts sought to be relied upon to mount the fraudulent misrepresentation claim. Thus, refusal of the present motion does not deny to GCR the opportunity to argue invalidity on the basis of those facts, devoid of the allegations of fraud.

The course that these proceedings have taken to this point in time has been anything but "quick and cheap". I have earlier recorded the fact that the present notice of motion is the eighth motion by which an interlocutory application has been made. It is now appropriate that a timetable be fixed so that the matter is brought to trial in a timely manner.

Disposition of the motion

For reasons earlier stated, GCR's notice of motion will be dismissed. The proposed Further Amended Points of Claim do not adequately plead the nexus between the conduct alleged to involve fraudulent misrepresentation and the determination to renew EL 3856 which is sought to be impugned. The pleading is also deficient in its failure to plead the manner in which and the terms in which the alleged misrepresentations were communicated to the Minister's delegate.

It is now necessary that a course be set to ensure that the proceedings are brought to a hearing in an efficient and timely manner. To that end, the proceedings will be listed before the List Judge on Friday 13 July for further directions. At that time, the parties should provide draft short minutes of orders and directions they would propose for the taking of those steps necessary to have the matter brought to hearing. Without pre-empting the decision of the List Judge, I would anticipate that the parties should be in a position to take hearing dates when the matter comes before the Court on 13 July.

Orders

For the reasons stated, I make the following orders:

1.The applicant's notice of motion dated 3 May 2012 is dismissed.

2.The applicant is to pay the costs of each respondent of that notice of motion.

3.The proceedings are listed before the List Judge on Friday 13 July 2012 for directions.

4.Exhibits may be returned.

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Amendments

17 October 2014 - Civil Procedure Act 1995 changed to Civil Procedure Act 2005

Amended paragraphs: Coversheet citations

Decision last updated: 17 October 2014

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Citations

Gold and Copper Resources Pty Ltd v The Minister for Resources and Energy [2012] NSWLEC 149

Cases Citing This Decision

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Cases Cited

2

Statutory Material Cited

4

Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11

Medium Neutral Citation:	Gold and Copper Resources Pty Ltd v The Minister for Resources and Energy [2012] NSWLEC 149
Hearing dates:	5 June 2012
Decision date:	06 July 2012
Jurisdiction:	Class 8
Before:	Craig J
Decision:	1. The applicant's notice of motion dated 3 May 2012 is dismissed. 2. The applicant is to pay the costs of each respondent of that notice of motion. 3. The proceedings are listed before the List Judge on Friday 13 July 2012 for directions. 4. Exhibits may be returned.
Catchwords:	PRACTICE AND PROCEDURE - proceedings challenging validity of determination to renew mining exploration license - motion seeking leave to further amend points of claim - amendment seeking to allege fraudulent misrepresentation - need for particularity and specificity in pleading such a claim - requirement by general law principles even where not a court of strict pleading - failure to plead nexus between alleged fraudulent conduct and the decision sought to be impugned - particulars of fraud otherwise deficient- motion dismissed PRACTICE AND PROCEDURE - history of proceedings - delay - overriding purpose under s 56 of the Civil Procedure Act 1995 - dictates of justice under s 58 of the Civil Procedure Act 1995 - applicant's case not prejudiced by refusing leave to amend points of claim
Legislation Cited:	Aboriginal Land Rights Act 1983 Civil Procedure Act 2005 Mining Act 1992 Uniform Civil Procedure Rules 2005
Cases Cited:	Banque Commerciale SA (In Liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 Brown v Bennett (No 2) (2002) 1 WLR 713; [2002] 2 All ER 273 Martin v State of New South Wales [2011] NSWLEC 50 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 NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730; (2003) 130 FCR 210
Category:	Interlocutory applications
Parties:	Gold and Copper Resources Pty Limited (Applicant) The Minister for Resources and Energy (First Respondent) Newcrest Mining Limited (Second Respondent)
Representation:	T Alexis SC (Applicant) T S Hale SC with J B Maston (First Respondent) I Jackman SC with S A Lawrence (Second Respondent) Corrs Chambers Westgarth (Applicant) I. V. Knight, Crown Solicitor (First Respondent) Allens Arthur Robinson (Second Respondent)
File Number(s):	80736 of 2011