Manna Hill Resources P/L v State of SA No. Scciv-01-292

MANNA HILL RESOURCES PTY LTD (ACN 082 747 993) &
THATHY (GERALDINE) ANDERSON
v
THE STATE OF SOUTH AUSTRALIA
[2001] SASC 124
Leave to Serve
Gray J
Introduction

On 31 January 2001 the plaintiffs, Manna Hill Resources Pty Ltd ("Manna Hill") and Thathy Geraldine Anderson ("Ms Anderson") issued an inter partes summons seeking relief set out in an annexed statement of claim. They claimed declarations, judicial review and an order in the nature of certiorari.
An ex parte application for leave to serve judicial review proceedings was sought. Rule 98 provides:
"98.01       (1)    Orders of mandamus, prohibition, certiorari and quo warranto to be sought by action for judicial reviewAn order in the nature of mandamus, prohibition, certiorari or quo warranto shall be sought by way of judicial review by summons in accordance with the provisions of this Rule.
(2)    Prerogative writs not to be issued but orders to be made in the nature of such writsThe prerogative writs of mandamus, prohibition and certiorari shall no longer be issued by the Court and informations in the nature of quo warranto are hereby abolished, but in any case in which relief could have been granted by means of any of the said writs or of the said information, the Court shall have jurisdiction to make an order in the nature, and to have the effect, of the remedy or of the remedies which would have been available if this Rule were not in force.
(3)    Declarations and injunction may be sought and granted on summons for judicial reviewDeclarations or injunctions may be sought in a summons for judicial review, and on such a summons the Court may grant the declaration or injunction claimed in lieu of, or in addition to, any order in the nature of, or having the effect of, a prerogative writ at common law if it considers that having regard to:
(a)     the nature of the matter in respect of which relief may be granted by way of an order having the effect of an order for mandamus, prohibition, certiorari or quo warranto;
(b)    the nature of the persons and bodies against whom relief may be granted by way of such an order; and
(c)    all the circumstances of the case;
it would be just and convenient for the declaration or injunction to be granted on a summons for judicial review.
(4)    Judicial review does not exclude other jurisdictionsThe existence of a remedy by way of judicial review does not exclude any jurisdiction of the Court to grant relief which could be invoked if this Rule had not been included."
It transpired that the proceedings had been issued in great haste. Appropriate supporting material was in the process of preparation. The plaintiffs were not in a position to proceed. The application was adjourned from time to time at the plaintiffs’ request. Difficulty arose over joint representation.
The defendant had become aware of the proceedings and sought to appear. There was no opposition. The matter proceeded inter partes. By 9 March 2001 the representation difficulty had been resolved. The plaintiffs had separate representation. The hearing of the application for leave to serve was fixed for 16 March 2001.
During submissions on 16 March 2001 the parties[1] indicated that they wished to have preliminary points of law decided. The case was adjourned to ascertain whether agreement could be reached. However the position of the defendant was conditional. Accordingly, I considered it inappropriate to embark on a determination of preliminary points of law. I indicated that I would hear the application for leave to serve.
Background[2]
[1] At the hearing counsel for BHP attended as an observer as it was still considering its position.
[2] The recitation of facts is based on the untested affidavits filed by the plaintiffs. The recitation is for the purpose of this interlocutory ruling.
Manna Hill is a mining company. Ms Anderson is the recognised spokesperson of the Andyamathanha Aboriginal Community (“the community”). She is authorised by tribal custom to speak on behalf of the community on matters affecting the lands surrounding Balcanoona Station in the Gammon Ranges in the far north of South Australia.
In 1957 the Broken Hill Company Ltd ("BHP") obtained mining leases numbered 4059-4067 in the Hundred of Copley within what was then known as Balcanoona Station ("the leases"). The leases were renewed from time to time. They were to expire on 7 February 2001.
In 1980 the Government of South Australia acquired Balcanoona Station and the surrounding land. In the early 1980s following the acquisition, the Gammon Ranges National Park was extended to include Balcanoona Station and the area subject to the mining leases.
The community is the traditional owner and custodian of the land which includes the Gammon Ranges National Park.
Substantial magnasite deposits exist within the mining lease area. Manna Hill wishes to mine the magnasite. The community strongly supports Manna Hill in its endeavours.
On 15 April 1982 the following proclamation was made[3]:
[3] The South Australian Government Gazette 15 April 1982 at 1248
“Pursuant to the National Parks and Wildlife Act, 1972-1981, and all other powers, I, the Governor’s Deputy with the advice and consent of the Executive Council:
1. Constitute the Crown lands defined in Schedule 1 as a national park having considered those lands to be of national significance by reason of the wildlife and natural features of those lands.
2. Assign to the national park hereby constituted the name ‘Gammon Ranges National Park (Additions)’.
3. Declare that the rights of entry, prospecting, exploration and mining pursuant to the Mining Act, 1971-1981 as are contained in the exploration licences and mining leases specified in Schedule 2 may be exercised in respect of the Crown Lands hereby constituted as a national park and defined in Schedule 1 subject to the following conditions:
(a)that the exercise of those rights be subject to the powers of management and control vested in the Minister, the Permanent Head and the Director by virtue of the National Parks and Wildlife Act, 1972-1981; and
(b)that the exercise of those rights be subject to the plan of management to be prepared pursuant to the National Parks and Wildlife Act, 1972-1981, in respect of the Crown lands which are hereby constituted as a national park and defined in Schedule I including any amendment to that plan or any plan substituted therefor.
4. Declare that rights of entry, prospecting, exploration or mining pursuant to the Mining Act, 1971-1981 may be acquired or exercised in respect of the Crown lands hereby constituted as a national park and defined in Schedule 1 subject to the following conditions:
(a)that prior to any of such rights being acquired the approval of the Minister of Environment and Planning be sought and obtained; and
(b)that the exercise of any such rights as are acquired be exercised:
(i)subject to the powers of management and control vested in the Minister, the Permanent Head and the Director by virtue of the National Parks and Wildlife Act, 1972-1981;
(ii)subject to the plan of management to be prepared pursuant to the National Parks and Wildlife Act, 1972-1981 in respect of the Crown lands hereby constituted as a national park and defined in Schedule 1 including any amendment to that plan or any plan substituted therefor.
Schedule 1
Sections 1293, 1313, 1314 and 1315, Out of Hundreds (Copley).
Schedule 2
Exploration Licences numbered 627, 871 and 934; Mining Leases numbered 4059, 4060, 4061, 4062, 4063, 4064, 4065, 4066 and 4067.”
On 15 July 1999 BHP transferred the leases to Manna Hill. The transfer was subject to the consent of the Minister for Minerals and Energy.
By Minute dated 15 August 2000 the Minister for Minerals and Energy provided advice to the Minister for Environment and Heritage. This advice included:
“After visiting the site in question and receiving numerous detailed briefings, it is still my opinion that as a matter of principle, the mining leases should be transferred to Manna Hill Resources. However, due to the sensitive environment of the area I believe that the Minister for Urban Planning, the Hon Diana Laidlaw, should be called upon to declare the transfer a major project and accordingly ask for an Environmental Impact Statement to be done.”
On about 29 August 2000 the Minister for Environment and Heritage decided not to approve the transfer of the leases from BHP to Manna Hill.
On 1 September 2000 the Minister for Minerals and Energy advised BHP:
“After considering the various environmental concerns and visiting the site in May and August this year the Minister for Environment and Heritage has conclusively decided to decline the transfer. I notified the Minister on 15 August 2000, that as a matter of principle the mining leases should be transferred to Manna Hill Resources and then a full EIS should be undertaken. However, the final decision regarding the transfer of the leases rests with Minister Evans and he has made his decision.”
On about 6 November 2000 BHP made application to renew the leases for a period of one year pursuant to s 38 of the Mining Act 1971 (SA). On 6 February 2001 Manna Hill lodged an application pursuant to s 29 for an exploration licence over the leased area.
On 7 February 2001 solicitors for BHP wrote to the Department of Primary Industries and Resources as follows:
“Applications for Renewal of Mineral Leases 4059 to 4067
We refer to our letter to you dated 7 November 2000 and to the above applications which were lodged with such letter.
We have now been instructed by BHP to withdraw the applications for renewal. We also request a refund of the associated fees paid by BHP on application.
Please withdraw the applications for renewal today and refund the fees in due course.”
The affidavits do not disclose whether any response was made to this letter.
The Plaintiffs’ Case
The plaintiffs allege that the decision not to approve the transfer of the leases was unlawful. It was said that the Minister for Environment and Heritage acted ultra vires the Proclamation and that the Proclamation was ultra vires the National Parks and Wildlife Act 1972 (SA).
In the alternative, it was claimed that in making the decision, the Minister for Environment and Heritage acted unreasonably. The following particulars were provided:
"The Minister failed to consider, or to properly consider, inter alia:
-The interests of the local Aboriginal community as stated by the second plaintiff who was the authorised representative of the local community;
-       The rehabilitation work performed by the first plaintiff;
-       The nature, significance, quantity and quality of the deposit;
-       The accepted international practice and standard of assessment of sustainable development;
-       The necessity of obtaining a full and complete Environmental   Impact Study;
-       The importance of magnesite to industry and the significance of its                  industrial uses;
-       The importance of the mine to the local and national economy;
-       The significance of magnesite in protecting the environment;
-       The non-harmful nature and method of mining the magnesite;
-The minimal impact of the mining of the magnesite on the environment, including the surrounding natural feature and wildlife.
It was further claimed that no reasonable person in the position of the Minister for Environment and Heritage could have come to the decision at which the Minister arrived. The earlier particulars were repeated and the following circumstances added:
"In light of the considerations stated in 19.1.1 above, and the material set out in the affidavits filed herein, no reasonable person in the position of Minister for Environment [and Heritage] could have come to the decision at which the Minister arrived in circumstances where:
-       He did not obtain a full Environmental Impact Study
-       The right to mine was already in existence
-       The purported decision had the effect merely of determining          who owned the right to mine the magnesite and not how that              right was exercised."
The following relief has been sought[4]:
[4] Referring to the amended Statement of Claim
"A. Declarations that:
1.Paragraph 4 of the proclamation of 15 April 1982 was ultra vires the National Parks and Wildlife Act 1972 (as amended);
2.The Minister for Environment and Heritage acted ultra vires in purporting to decide not to approve the transfers of the mining leases numbered 4059-4067 inclusive from BHP to the first plaintiff;
3.The approval of the Minister for Environment and Heritage was not a necessary precondition to the transfers of the Mining Leases;
4.The advice of the Minister for Minerals and Energy to the Minister for Environment and Heritage of 15 August 2000 constituted actual or constructive consent to the transfers of the Mining Leases.
5.Insofar as the purported decision of the Minister for Minerals and Energy to refuse consent to the transfer of the Mining Leases on 7 September 2000 was based on the purported decision/intervention of the Minister for Environment and Heritage, his refusal was void and of no effect;
6.The Minister for Minerals and Energy was not required, entitled or permitted to have regard to the purported decision/intervention of the Minister for Environment and Heritage of 29 August 2000 in purporting to refuse his consent to the transfers of the Mining Leases on 7 September 2000;
7.The Minister for Minerals and Energy was obliged to renew the Mining Leases;
8.The purported withdrawal by BHP of their application for the renewal of the Mining Leases on 7 February 2001 was void and of no effect;
9.The Mining Leases continue in operation pursuant to the provisions of the Mining Act 1971 (SA) and the Mining Regulations 1998 (SA).
B.[DELETED]
C.Judicial Review of the purported decisions of the Minister for Environment and Heritage on 29 August 2000 and the Minister for Minerals and Energy on 7 September 2000, and the failure of the Minister for Mines and Energy to give effect to the transfers and/or renewals of the Mining Leases, on the grounds appearing in the affidavits filed by and on behalf of the plaintiffs herein.
D.An order in the nature of certiorari quashing the purported decision.
E.Costs.
F.Such other orders as this Honourable Court deems appropriate.”
The plaintiffs submitted that the declaratory relief was sought pursuant to the general jurisdiction of the court. It was not sought pursuant to Rule 98.01(3).
The plaintiffs claimed that the mining leases were extant. It was contended that BHP had the right to transfer the leases. Reference was made to section 83 of the Mining Act 1971 (SA) which provides:
83.(1) Subject to subsection (2), a lease or licence, or an interest in a lease or licence, under this Act shall not be assigned, transferred, sublet, or made the subject of any trust or other dealing, whether directly or indirectly, without the consent in writing of the Minster, and any such transaction entered into without that consent shall be void.
(2)A lease or licence, or an interest in a lease or licence, may be charged without the consent of the Minister, but any assignment or transfer of the licence or interest for the purpose of enforcing the charge shall not be made except with the consent of the Minister and, if made without that consent, shall be void.
(3)The Minister may, before consenting to a transaction subject to the provisions of this section, require the parties to furnish him with such information in relation to the transaction as he may require.
(4)An application for the consent of the Minister under this section shall be accompanied by the prescribed fee.”
It was said that BHP had exercised its right to transfer the leases. The only consent required was that of the Minister for Minerals and Energy. It was said that he had given his consent.
It was contended that BHP had a right to renew the leases pursuant to s 38 of the Mining Act which provides:
“38.(1) A mining lease may be granted for such term, not exceeding 21 years, as may be determined by the Minister and specified in the lease.
(2)Subject to the terms and conditions of a mining lease, the holder of the lease shall, if he has complied with the provisions of this Act, and the terms and conditions of the lease during the term for which the lease was granted or last renewed, be entitled, at the expiration of that term, to the renewal of the lease for a further term.
(3)Where a person who is entitled to the renewal of a mining lease under this section makes due application in the prescribed form for the renewal of the lease not more than 6 months, and not less than 3 months, before the date of its expiry, the Minister shall renew the lease for a term, not exceeding 21 years, determined by the Minister.
(4)If an application for the renewal of a mining lease is not decided before the date of expiry, the lease continues in operation until the application is decided and, if the lease is renewed, the renewal dates from the date on which the lease would, but for this subsection, have expired.
The discretion of the Minister for Minerals and Energy was said to be limited to determining the duration of the renewal period. Finally, it was said that BHP had renewed the leases. Renewal occurred when BHP made the applications on 7 November 2000. The later notice of withdrawal was of no effect as the leases had been renewed. It was said that the leases had not been surrendered by BHP or cancelled by the Minister and accordingly they were extant. All that remained was that the further term of the leases be determined by the Minister.
It was said that when the Minister or his delegate considers the application for an exploration licence, declarations as to the legality of past events will be relevant. Counsel for Manna Hill submitted that the obtaining of declarations would be of benefit. It claimed that:
“... one of the factors impacting upon any decision in the matter is, or ought to be, whether the plaintiff company was unlawfully deprived of its lawful rights in respect of the mining leases by an excess of power by the Minister for Environment.”
The Defendant’s Submission
The defendant conceded that the plaintiffs had established an arguable case that the decision of the Minister for Environment and Heritage was void and of no effect. It was accepted that if the Minister for Environment and Heritage's decision was void and of no effect, then there would be a flow on effect to the decision of the Minister for Minerals and Energy. As a consequence, his decision would also be void and of no effect.
The defendant submitted that despite this concession, there was no prospect of any relief being granted and accordingly leave to serve should be refused.
It was submitted that the leases had expired on 7 February 2001. It was said that although BHP had applied to renew the leases on 7 November 2000 it had subsequently withdrawn those applications. As a consequence, the leases no longer existed and any order made could not facilitate their revival.
Attention was drawn to Xenophon v State of South Australia[5] where Lander J said at [21]:
[5] [2000] SASC 327, 21 December 2000
" In my opinion no declaratory orders can be made under r 98.01 on any application for judicial review unless the plaintiff is entitled to an order in the nature or having the effect of a prerogative writ, and it would be just and convenient for the declaration or injunction to be granted on a summons for judicial review, after consideration of the matters in r 98.03(3)."
Reference was also made to Clayton v Ralphs & Manos[6] where Jacobs J said at (354):
[6] (1987) 45 SASR 347
"The scope of judicial review
Rule 98.01 of the new rules incorporates into the Rules of Court for the first time a procedural concept which has already found expression in other jurisdictions. It does not alter the substantive law. It embraces in one order the supervisory jurisdiction over inferior courts and tribunals which was formerly exercisable by means of the prerogative writs, and authorises, to a limited extent, declaratory orders and injunctions in aid of that supervisory jurisdiction: r 98.01(3). It does not supersede or displace the action for a declaration and injunction in the resolution of disputes involving private rights. In the words of Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 639:
'... judicial review is a remedy that lies exclusively in public law. In my view the language of r 1(2) and (3) of the new O 53 shows an intention that on an application for judicial review the court should have jurisdiction to grant a declaration or an injunction as an alternative to making one of the prerogative orders, whenever in its discretion it thinks that it is just and convenient to do so, and that this jurisdiction should be exercisable in any case in which the applicant would previously have had locus standi to apply for any of the prerogative orders.'
...
It is to be observed that when Mason J ... said in Sankey v Whitlam (1978) 142 CLR 1 at 84 that:
'if a committing magistrate is not subject to prohibition, even for absence or excess of jurisdiction, it may be said that this constitutes an additional reason for exercising the discretion to grant declaratory relief if it be otherwise appropriate.'
He was speaking of the discretion to grant declaratory relief in an action, and not by way of the summary procedure in an application for judicial review. It is in my view of fundamental importance to maintain that distinction, particularly with respect to the claim in the present proceedings that this Court should exercise its inherent jurisdiction to prevent an alleged abuse of process."
Counsel cited S v Metanomski[7]. King CJ said at (353):
"The plaintiff seeks an order in the nature of certiorari quashing the magistrate's order and an order in the nature of mandamus directing him to grant leave. He also seeks declarations of his right to the orders sought from the magistrate and an injunction or order in the nature of prohibition forbidding the continuance of the preliminary examination until the orders for oral examination and the view have been made.
Declarations of right and injunctions may now be granted in an action for judicial review: Supreme Court Rules 1987 (SA), r 98.01. The rule, however, merely enlarges the remedies which may be granted and does not purport to widen the grounds upon which relief by way of judicial review may be granted. Relief by way of judicial review remains confined to situations in which one or other of the prerogative orders could formerly have been made."
[7] (1992-1993) 65 A Crim R 352

It was submitted that the proceedings were futile. As the leases had expired, judicial review could lead to no relief. No declarations in lieu of or in addition to judicial relief could be granted when judicial relief itself would be refused.
Additionally it was said that the court could not make an order in the nature of prerogative relief when no benefit would flow from that order. Reference was made to the decision in R v Andersonex parte Ipec Air[8] and R v Johns ex parte PSA[9]. It was claimed that an order in the nature of mandamus to direct the Minister to perform his duty according to law under s 83 of the Mining Act 1971 (SA) would also be futile.
[8] (1965) 113 CLR 177
[9] (1971) SASR 206
The Claim for Declaratory Relief
Rule 98.01 addresses procedural matters. It does not effect any change to the substantive law. It does not limit the declaratory powers of the court. I do not understand Lander J in Xenophon to be suggesting the contrary. His Honour’s remarks related to declarations being sought only pursuant to Rule 98.01(3). In Xenophon no attempt was made to invoke the courts general jurisdiction.
The plaintiffs claim declaratory relief pursuant to the general jurisdiction of the court. The source of that power is s 31 of the Supreme Court Act 1935 (SA):
“No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court shall have power to make binding declarations of right whether any consequential relief is or could be claimed or not.”
The summons and statement of claim do not advance a claim for declaratory relief pursuant to Rule 98.03.
The plaintiffs have combined in the one proceeding, this claim with a claim for Judicial Review. This is sanctioned by s 27 of the Supreme Court Act 1935 (SA) and Rule 26.01. This may cause some tension as the rules contemplate the summary disposal on affidavit of judicial review proceedings. This issue will need to be addressed in the event that leave to serve is granted.
In Sankey v Whitlam[10] Gibbs ACJ considered the respective powers of declaration and prohibition. He said:
[10] (1979-1980) 142 CLR 1 at 22
“The two sorts of relief are governed by different principles, and if the decision of a magistrate is immune from review by means of the prerogative writs it does not follow that a declaration cannot be made in relation to the subject matter of the proceedings – so much is recognized in the judgment of Walsh J. in Forster v. Jododex Aust. Pty. Ltd. On the other hand, if prohibition does lie, a declaration can nevertheless be made, for the existence of an alternative remedy is no bar to the making of a declaration, but merely a mater to be weighed by the court in the exercise of its discretion.”
The jurisdiction to grant declaratory relief is very wide. In J N Taylor Holdings Ltd (In Liq) v Bond[11] King CJ with whom Prior and Perry JJ agreed said at (435-436):
"Authoritative judicial statements make it clear that the jurisdiction to grant declaratory relief is very wide and that judicial pronouncements appearing to restrict the circumstances in which such relief will be granted relate to the sound exercise of the discretion rather than to jurisdiction: Ibeneweka v Egbuna [1964] 1 WLR 219 at 225; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 esp per Gibbs J at 438; Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192, per Mason JA at 201. It is not necessary that the plaintiff have a cause of action against the defendant: Guaranty Trust Co of New York v Hannay and Co [1915] 2 KB 536. A statement by Lord Sterndale MR in Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at 507, quoted by Gibbs J in Forster v Jododex (supra) at 435, appeared to confine the otherwise unlimited character of the jurisdiction to cases involving 'a question of defining the rights of two parties'. As was pointed out, however, by Street CJ on Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43 at 51, that statement was made 'at a time when the declaratory jurisdiction had not achieved the full development manifested in the last 20 or 30 years'. By 1970 the Privy Council could say in Rediffusion (Hong Kong) Ltd v Attorney-General (Hong Kong) [1970] AC 1136 at 1158 that to exclude the jurisdiction it must appear 'that the questions were purely abstract questions the answers to which were incapable of affecting any existing or future legal rights of the plaintiffs'. ... In Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation (supra), Street CJ (at 53) repudiated the notion of jurisdictional cut-off points in relation to declaratory relief. Moffitt P said (at 57):
'The proper conclusion to be drawn concerning the power to make a declaration is that the jurisdiction (in the strict sense) to grant declaratory relief in a properly constituted action is very wide, so that no particular limitation can be pointed to ...'
The other member of the court, Hutley JA, considered that there are limits upon the power to make declarations. The limits which he articulated went no further than that a declaration must 'be confined to those matters which have a real legal context, and to the determination of which the Court's procedure is apt' (at 61) and that it must not be a declaration as to a purely abstract or theoretical question (at 62-63).
I can find no warrant for the imposition by the courts of a self-denying restriction on their jurisdiction to grant declaratory relief. In my opinion there is no jurisdictional limit. The court's power to grant such relief is 'only limited by its own discretion' (Hanson v Radcliffe (supra) at 507), and the boundaries of judicial power: Ainsworth v Criminal Justice Commission (1992) 1975 CLR 564 at 581-582.
...
The proposition that there is no limit to the jurisdiction of the court to grant declaratory relief would be an incomplete and misleading statement of the true position unless there be added the further proposition that there are circumstances which are so contra-indicative to the exercise of the discretion in favour of the grant of declaratory relief that the existence of those circumstances would lead almost inevitably to the exercise of the discretion against the making of a declaration. Examples of such decisively contra-indicative circumstances can be found in the cases. A declaration will not be made except in matters 'which have a real legal context, and to the determination of which the Court's procedure is apt': Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation (supra) per Hutley JA at 61. There must be some person who has a true interest in opposing the declaration. The question raised must not be purely theoretical. There must not only be a party with a true interest in opposing the declaration, but the plaintiff must have a real interest in having the question determined: Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438, per Lord Dunedin at 448. That interest may exist although the apprehended impact on the plaintiff may be no more than a future possibility: Hordern-Richmond Ltd v Duncan [1947] 1 KB 545. If, however, the determination of the question could not affect the plaintiff's legal rights or commercial or personal interests now or in the future, that is to say would 'produce no foreseeable consequences for the parties' (Gardner v Dairy Industry Authority (1977) 52 ALJR 180 at 188, per Mason J), see generally Ainsworth v Criminal Justice Commission (supra) at 581-582, the declaration would almost certainly be refused."
[11] (1992-93) 59 SASR 432
I reject the submission of the defendant that the declarations sought are ancillary to the claim for judicial review.
I consider that the claim for declaratory relief has been brought under the general jurisdiction of the court. The claim is not ancillary to judicial review. In these circumstances, leave to serve the declaratory proceedings is not required.
Application for Judicial Review
In my view, the plaintiffs’ case for judicial review is arguable. As earlier observed, the defendant accepted that the plaintiffs had an arguable case that the decision of the Minister for Environment and Heritage was void and of no effect. It was conceded that if this argument is correct, then there would be a "flow on" effect. This would taint the decision of the Minister for Minerals and Energy. In these circumstances the plaintiffs, if successful, could obtain orders that may have some utility.
I consider the plaintiffs’ case is sufficiently arguable to warrant a grant of leave. It is inappropriate to express any view about the merits of the case at this interlocutory stage.
I grant leave to serve the within proceedings to the extent that such leave is necessary.
[1]At the hearing counsel for BHP attended as an observer as it was still considering its position.
[1]The recitation of facts is based on the untested affidavits filed by the plaintiffs. The recitation is for the purpose of this interlocutory ruling.
[1] Referring to the amended Statement of Claim
[1] [2000] SASC 327 21 December 2000
[1] (1987) 45 SASR 347
[1] (1992-1993) 65 A Crim R 352
[1] (1965) 113 CLR 177
[1] (1971) SASR 206
[1] (1979-1980) 142 CLR 1 at 22
[1] (1992-93) 59 SASR 432

[2001] SASC 124

24 April 2001