Manna Hill Resources Pty Ltd v State of South Australia No. Scciv-01-282

MANNA HILL RESOURCES PTY LTD AND ANOR v THE STATE OF SOUTH AUSTRALIA
[2002] SASC 432
Full Court: Duggan, Debelle and Williams JJ

DUGGAN J In my view this appeal should be dismissed for the reasons given by Debelle J.
DEBELLE J This is an appeal from a decision of a judge of this Court answering questions referred to him as preliminary questions of law pursuant to Rule 75.02.
In this action, the plaintiffs challenge decisions of the Government of South Australia which prevent the first plaintiff from mining areas in the Gammon Ranges for magnesite. The area is Crown land. The judge answered the preliminary questions adversely to the plaintiffs. The first plaintiff has appealed against that decision.
For many years, BHP Limited (“BHP”) has held nine mining leases over land in the Gammon Ranges. The first plaintiff is a mining company Manna Hill Resources Pty Ltd (“Manna Hill”) which claims to have an interest in the nine leases held by BHP. There are questions whether the leases are still on foot, whether BHP has transferred them to Manna Hill, and whether Manna Hill is entitled to a transfer of the leases.
The second plaintiff claims to represent the Andyamathanha people of the region. She says that her community supports Manna Hill in its claim to be able to mine in the Gammon Ranges. There are questions whether she had authority to speak on behalf of the community and whether others in the community were opposed to Manna Hill’s intentions to mine. This was not an issue pursued on the determination of the preliminary questions.
To enable the determination of the preliminary questions of law the parties had agreed facts and documents. They then asked ten questions of law. I will summarise the agreed facts and the effect of the agreed documents. Before doing so it is necessary to note certain provisions of the National Parks and Wildlife Act, 1972 (“the National Parks Act”).
Section 28 of the National Parks Act provides that the Governor may by proclamation constitute Crown land as a national park. Section 43 of the National Parks Act deals with prospecting and mining rights in national parks. It provides:
“       43. (1) Subject to subsection (2), rights of entry, prospecting, exploration, or mining cannot be acquired or exercised pursuant to a mining Act in respect of land constituting a reserve.
(1a)   Subsection (1) does not apply to a regional reserve.
(2)    The Governor may, by proclamation, declare that subject to any conditions specified in the proclamation rights of entry, prospecting, exploration, or mining may be acquired and exercised in respect of land constituting a reserve or portion of a reserve, to which subsection (1) applies.
(2a)   A person must not contravene or fail to comply with a condition of a proclamation under this section.
Maximum penalty:     $10 000 or imprisonment for 2 years, or both.
(3)    A proclamation under subsection (2) has effect in accordance with its terms.
(4)    The Governor may, by proclamation, vary or revoke a proclamation under subsection (2).
(5)    A proclamation under this section in respect of land constituting a national park, a conservation park or the Para Wirra Recreation Park (except a proclamation revoking a previous proclamation) must not be made unless—
(a)    the proclamation is made for the purpose of continuing rights of entry, prospecting, exploration or mining vested in any person immediately before the commencement of this Act in respect of that land; or
(b)    the proclamation is made simultaneously with the proclamation constituting that land a national park or a conservation park; or
(c)     the proclamation is made in pursuance of a resolution passed by both Houses of Parliament.
(6)    Notice of a motion for a resolution under subsection (5)(c) must be given at least 14 sitting days before the resolution is passed.”
The noun “reserve” in the National Parks Act is defined by s 5 of that Act to mean “any national park, conservation park, game reserve, recreation park or regional reserve” constituted under the Act.
The Agreed Facts
I turn to deal with the agreed facts. On 15 April 1982 the Governor made a proclamation constituting the Gammon Ranges as a national park. The proclamation was in these terms:
“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 1 including any amendment to that plan or any plant 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.
Sections 1293, 1313, 1314 and 1315, Out of Hundreds (Copley).”
The leases vested in Schedule 2 are the leases which were then held by BHP and are the leases in which Manna Hill now claims to have an interest.
BHP has held those mining leases since 1957, when it was known as The Broken Hill Proprietary Company Limited. By an agreement dated 1 October 1998 BHP agreed to transfer the leases to Manna Hill. Section 83 of the Mining Act 1971 (“the Mining Act”) regulates the transfer of leases. It provides that the lease cannot be transferred without the written consent of the Minister. On 2 July 1999 the Director, Mineral Resources within the Department of Primary Industry and Resources SA (“PIRSA”) informed BHP that “PIRSA has no objections to the transfer of the mining lease” to Manna Hill.
On 15 July 1999 BHP applied to transfer the mining leases to Manna Hill. On 15 August 2000 the Minister for Minerals and Energy sent a minute to the Minister for Environment and Heritage (“the Minister for Environment”) concerning the proposed transfer of the mining leases. The minute referred to a number of matters including advice from the Crown Solicitor’s Office. For present purposes it is sufficient to note only the first two paragraphs of the minute. They are in these terms:
“Further to our conversations concerning the application by BHP and Manna Hill Pty Ltd to transfer various mining leases over the Gammon Ranges National Park to Manna Hill Resources Pty Ltd, I now advise the following.
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 29 August 2000 the Minister for Environment sent a letter to Manna Hill refusing consent to the transfer of the mining leases. On 1 September 2000 the Minister for Minerals sent a letter to BHP informing it of the Minister for Environment’s decision to refuse consent. On 7 September 2000 the Minister for Minerals refused his consent to the transfer of the mining leases. On the same date he wrote to BHP informing it of his decision.
On 6 November 2000 BHP applied to renew its nine mining leases. On 28 November 2000 the solicitors for BHP wrote to the solicitors for Manna Hill informing them that BHP did not intend to seek the renewal of its mining leases beyond 7 February 2001.
On 31 January 2001 the plaintiffs instituted this action.
On 6 February 2001 Manna Hill applied for an exploration licence over an area which included the area subject to the nine mining leases.
By letter dated 7 February 2001 BHP withdrew its application for the renewal of the mining leases. It seems that PIRSA holds documents which continue to show BHP as the holder of the mining leases.
Those were the facts before the trial judge. He published his reasons for judgment on 21 November 2001. Shortly stated, the effect of the judge’s answers was that the provisions of the Mining Act were subject to the provisions of the National Parks Act, that the refusal by the Minister for Environment to consent to the transfer of the lease to Manna Hill was valid, and that BHP had validly withdrawn its application to renew its mining leases.
Manna Hill instituted this appeal on 29 November 2001. On 25 July 2002 the Governor made a further proclamation pursuant to s 43 of the National Parks Act having been requested to do so by resolution of both the House of Assembly and the Legislative Council. By that proclamation, the Governor varied the proclamation made on 15 April 1982 by striking out clauses 3 and 4 of that proclamation. The proclamation also struck out Schedule 2. The effect of the proclamation made on 25 July 2002 is to prohibit mining in the Gammon Ranges. There is an interesting question whether, by reason of the terms of s 16 of the Acts Interpretation Act 1915, the proclamation affects the issues in this appeal. It is unnecessary to stay with that issue. I prefer to determine this appeal on its merits.
The notice of appeal lodged by Manna Hill asserts that the mining leases did not lapse. Manna Hill contends that the Minister for Environment had no authority to refuse consent to the transfer of the mining leases and that BHP lacked the capacity to withdraw its applications for renewal. The notice of appeal asserts a number of facts which were not proved in the court below. It also raises a number of issues which were not canvassed in the court below. This Court is not at liberty to examine those issues. It must confine its attention to the agreed facts and to the questions of law determined by the judge. Given the concerns of Manna Hill to contend that the decision of the judge was in error, I have carefully examined the facts and issues pertaining to each of the separate questions of law which the judge answered. Out of deference to the arguments earnestly advanced on behalf of Manna Hill, it is possible also to deal with the new issues argued by it on the appeal since the facts concerning them are not in dispute. I deal first with the judge’s answers to the questions submitted for his determination.
The Questions
Questions 1 and 2
“Is paragraph 4 of the Proclamation of 15 April 1982 (‘the Proclamation’), or any part thereof, ultra vires ss 28 and 43 of the National Parks and Wildlife Act 1972 (SA)?
If paragraph 4 of the Proclamation, or any part thereof, is so ultra vires, is it or any part thereof severable from the balance of that paragraph?”
The submission that the Proclamation was ultra vires was abandoned. Thus it was unnecessary for the trial judge to answer questions 1 and 2.
Questions 3 and 4
“Was the approval of the Minister for Environment and Heritage a necessary precondition to the transfers of the Mining Leases identified in Schedule 2 to the Proclamation (‘the Mining Leases’)?”
“Was the Minister for Environment and Heritage’s decision to refuse consent to the transfers of the Mining Leases ultra vires the Proclamation and therefore void and of no effect in that the Minister for Environment and Heritage was not empowered by the Proclamation to refuse consent to the transfers of the Mining Leases?”
The trial judge correctly noted that these questions turned on the construction of the Proclamation made by the Governor on 15 April 1982 declaring the Gammon Ranges to be a national park. The trial judge concluded that the terms of para 3 of the Proclamation preserved only the existing mining leases held by BHP. In his view neither s 43 of the National Parks Act nor the terms of the Proclamation addressed any other interest or entitlement of BHP as lessee and in particular did not preserve any entitlement to transfer the leases. He answered question 3, Yes and question 4, No.
Manna Hill contended in effect that paragraph 3 of the Proclamation is intended to preserve not only mining operations but also the right to renew a mining lease and the right to apply for consent and the transfer of a mining lease. Paragraph 3 of the Proclamation is clearly intended to preserve certain rights under the exploration licences and mining leases listed in Schedule 2 of the Proclamation. The terms in which paragraph 3 are expressed limit those rights to “rights of entry, prospecting, exploration and mining” pursuant to the Mining Act “as are contained in the exploration licences and mining leases specified in Schedule 2”. As paragraph 3 of the Proclamation preserves “the rights of … mining pursuant to the Mining Act”, it is necessary to determine what falls within that expression. Section 39 of the Mining Act prescribes the rights conferred by a mining lease in these terms:
“A mining lease -
(a)confers an exclusive right upon the holder of the lease to conduct mining operations subject to the provisions of this Act and the terms and conditions of the lease for the recovery of minerals from the land comprised in the lease; and
(b)authorises the holder of the lease to sell, or dispose of, minerals recovered in the course of mining operations conducted in pursuance of the lease or to utilise any such minerals for any commercial or industrial purpose.”
The expression “mining operations” is defined in s 6 of the Mining Act to mean
“… all operations carried on in the course of prospecting, exploring or mining for minerals, or quarrying, and includes operations by means of which minerals are recovered from the sea or a natural water supply, but does not include fossicking, …”
It is an interesting question whether the exclusive right to which s 39(a) refers includes the right of renewal provided by s 38 of the Act, the right to apply for a transfer of a mining lease (s 83 of the Act), and the right to surrender a lease (s 82 of the Act) or whether it is limited to actual mining operations. However, it is unnecessary to examine that question. Even if Manna Hill is correct in contending that s 39(a) includes those rights, that conclusion does not assist it. That is a consequence of two facts. The first is that BHP ultimately withdrew its applications for renewal of its mining leases. The second and, for the purposes of this question, more relevant fact is that paragraph 4 of the Proclamation provides that the acquisition of mining rights is subject to the conditions spelled out in that paragraph. In ordinary parlance and at law the verb “acquire” in this context means to acquire an interest in a mining lease. The obtaining of a transfer of a mining lease is but one means by which a person can acquire the right to mine. It is relevant to add that paragraph 3 of the Proclamation applies only to existing rights and the exercise of those rights. It says nothing about the acquisition of rights which is the subject of paragraph 4.
Paragraph 4(a) of the Proclamation prescribes that any rights under the Mining Act may be acquired only with the approval of the Minister of Environment and Planning. That Minister is now called the Minister of Environment and Heritage. For convenience, I will refer to the Minister as “the Minister for Environment”. Thus, Manna Hill could acquire the mining leases by transfer from BHP only if the Minister for Environment approved. In other words, the approval of the Minister for Environment was a necessary precondition to the transfer of the mining leases.
Manna Hill contended that the terms of the Mining Act are inconsistent with the terms of the National Parks Act. It submitted that the inconsistency may be resolved by construing s 43 of the National Parks Act as permitting, and the Proclamation as preserving, all rights of entitlement attaching to mining leases including the right to apply to transfer the lease. It is, I think, unhelpful to speak of an inconsistency between the Mining Act and the National Parks Act. This is an instance of the presumption that the State Parliament did not intend to contradict itself but intended that both enactments should operate: Butler v Attorney-General (Vic) (1961) 106 CLR 268 per Fullagar J at 276. The Mining Act is an Act of general application regulating mining throughout the State. The National Parks Act deals only with the establishment and management of parks and reserves for the public benefit and enjoyment and conservation of wildlife in a natural environment as well as incidental matters. It is a special Act while the Mining Act is more general in its operation. Section 43 of the National Parks Act qualifies the operation of the Mining Act in parks and reserves established under the National Parks Act. In other words, the Mining Act must be read as being subject to the provisions of the National Parks Act. The necessary consequence is that the Minister for Environment had power to refuse consent to the transfer of the mining leases.
As paragraph 4(a) of the Proclamation expressly provides that the acquisition of rights under the Mining Act in respect of a national park are subject to the approval of the Minister of Environment and as the transfer of a lease is but one means by which a person may acquire a right under the Mining Act, the Minister had power to refuse consent to the transfer of the mining leases. It follows the answer to question 4 is No. The judge correctly answered questions 3 and 4.
Question 5
“Did the advice of the Minister for Minerals and Energy to the Minister for Environment and Heritage on 15 August 2000 constitute actual or constructive consent to the transfers of the Mining Leases?”
The judge answered this question, No. For the reasons which follow he was correct to do so.
This question stems from the terms of the minute of 15 August 2000 from the Minister for Minerals and Energy to the Minister for Environment which has already been quoted. For present purposes, the relevant terms of the minute are:
“... it is still my opinion that as a matter of principle, that mining leases should be transferred to Manna Hill Resources.”
It will be recalled that s 83 of the Mining Act provides that mining leases may only be transferred with the consent in writing of the Minister for Minerals and Energy. Any transfer made without the Minister’s consent is void.
Manna Hill had submitted that the terms of the minute of 15 August 2000 disclose that the Minister for Minerals and Energy was expressing his consent to the transfer. The trial judge dismissed the contention stating:
“It was an opinion expressed by the Minister for Minerals and Energy to the Minister for Environment and Heritage about a matter of principle. It was a step in the internal processes of government. It goes no further. It does not amount to consent in writing that the Mining Act requires.”
I agree with the trial judge’s interpretation of the minute. The minute does no more than express a view of the Minister. By no means can it fairly be regarded as a consent. The use of the word “still” suggests that there might have been some earlier communication between the two Ministers. However, no such communication was proved. It might be added that, even if the minute constitutes a consent on the part of the Minister for Minerals and Energy, the Minister for Environment retained the power to refuse consent pursuant to the combined effect of the Proclamation and s 43 of the National Parks Act.

Question 6
“Was the Minister for Minerals and Energy required, entitled or permitted to have regard to the decision 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? If not, was that refusal to consent void and of no effect?”
The trial judge answered this question, Yes. It is apparent from the discussion above that the Minister for Minerals and Energy was required to have regard to the decision of the Minister for Environment. In other words, the consent of the Minister for Environment was a necessary pre-requisite for the Minister for Minerals and Energy to consent to the transfer of a mining lease. The judge was, therefore, correct.
Manna Hill sought to gain some comfort from the terms of The Broken Hill Proprietary Company’s Steel Works Indenture Act, 1958 (“the BHP Indenture Act”). However, that Act does not assist for the reasons which follow.
The BHP Indenture Act approved and ratified an indenture made in 1958 between the State of South Australia and The Broken Hill Proprietary Company Limited, as that company was then called, relating to the establishment of steel works at Whyalla. Clause 13 of the indenture entitled BHP to renew any mining lease granted to it before or after the ratification of the indenture by which it mined minerals essential for its operations at Whyalla or its steel making operations generally. It appears that the mining of magnesite was for the purpose of BHP’s operations at Whyalla. Clause 13 applies, notwithstanding the enactment of any Act to the contrary. The provisions of clause 13 do not assist Manna Hill since BHP was always at liberty to renew its mining leases and, in this case, decided not to renew them beyond 7 February 2001.
Clause 31 of the indenture dealt with the transfer of mining leases among other things. The relevant sub-clauses are (1) and (4). They are in these terms:
“(1) With the consent of the State, the Company may assign—
(a)any right, power, benefit, or privilege conferred on the Company by this Indenture;
(b)any mineral or other lease held by the Company at the date of the ratification of this Indenture or acquired by the Company pursuant to this Indenture.
…
(4)The State shall have a discretion to grant or refuse its consent to any assignment of rights, powers, benefits, privileges or leases under this clause or to the performance of any of the Company’s obligations or duties by another company but shall not unreasonably withhold such consent.”
Thus, BHP was able to transfer a mining lease with the consent of the State. The provisions of the National Parks Act and of the Proclamation made in 1982 under that Act are not inconsistent with the provisions of clause 31 because they do no more than prescribe a means by which the State will determine whether to grant its consent in the case of any mining leases held by BHP in the Gammon Ranges. These provisions therefore do not assist Manna Hill.
Section 6 of the BHP Indenture Act authorises the parties to vary the terms of the indenture by agreement in writing. On 30 March 2000, the parties executed an amending deed. Among other things, it added clause 31(5). One effect of that provision is that, subject to the consent of the State, BHP was at liberty to transfer its rights under its mining leases granted pursuant to the indenture to another company by executing a deed of assignment in the form of the deed set out in Appendix E to the indenture. The State cannot withhold its consent if the transferee is a corporation related to BHP. Manna Hill is not a corporation related to BHP. Clause 31(5)(c) provides:
“(c)In all other cases, the State will not unreasonably withhold or delay the giving of its consent to a proposed transfer of rights and obligations under this Indenture, or its execution of a deed of assignment and assumption, provided that the State is satisfied:
(i) that the proposed Assignee is responsible and solvent; and
(ii) with such proposed Assignee’s plans to secure the continued viability of the steel works and related operations in and around Whyalla.”
It will be noticed that clause 31(5)(c) applies where the proposed assignee intends to continue the steel works and related operations. Manna Hill is not in a position to satisfy the terms of clause 31(5)(c). The amendments in 2000 do not therefore assist Manna Hill.
For all of these reasons, none of the terms of the BHP Indenture Act or the indenture as they existed in 1958 or as amended in 2000 assist Manna Hill.
Question 7
“Have the Mining Leases expired by effluxion of time or do they remain extant having regard inter alia to: (a) the application by BHP to renew the Mining Leases dated 6 November 2000 and/or (b) the provisions of the Mining Act 1971 (SA) and the Mining Regulations 1998 (SA) and/or (c) the advice of the Minister for Minerals and Energy to the Minister for Environment and Heritage of 15 August 2000?”
The judge concluded that the mining leases had expired with the effluxion of time.
A lease for a fixed term automatically determines at the expiry of that term unless it has been earlier renewed: Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386, 390. The mining leases were for a fixed term. On 6 November 2000 BHP applied to renew its leases for a term of one year. The leases were due to terminate on 7 February 2001. However on 7 February 2001 BHP withdrew its applications for renewal. The leases therefore expired by effluxion of time on 7 February 2001.
Manna Hill contended that the leases continued by virtue of the three factors identified in question 7. It submitted first that BHP could not withdraw the applications for renewal. Section 38 of the Mining Act provides:
“(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.”
As the trial judge noted, there is no obligation on the part of the holder of a mining lease to apply for renewal. There is nothing in s 38 nor in the Mining Regulations which provides for withdrawal of an application to renew a lease. Contrary to the submissions of Manna Hill, there is no requirement that withdrawal of an application be under seal nor is there anything which prescribes an application for renewal is irrevocable. It is not possible to imply into s 38 any prohibition upon an applicant to withdraw the application. Indeed, such a prohibition would have to be expressed in clear and unequivocal terms because it would impose on applicants the burden of complying with the terms of the mining lease notwithstanding a decision to withdraw the application. It would be absurd to suggest, say, that a company which had applied to renew its lease could not withdraw its application if its financial circumstances had dramatically changed so that it could no longer afford to continue its mining operations.
Manna Hill sought to gain some comfort from the fact that an application to surrender a mining lease requires the consent of the Minister: see s 82 of the Mining Act. However, that fact does not assist. The requirement for Ministerial consent exists for obvious reasons. The holder of the lease has taken on the obligations of the lease and the Minister is entitled to consider whether it is appropriate to release the lessee from those obligations before the term of the lease has expired. An application for renewal is quite different. The lease is about to expire and the holder of the lease is at liberty to decide whether or not to renew it. The earnest contentions of Manna Hill to the contrary cannot be upheld.
For these reasons, neither the applications by BHP to renew the mining leases nor the provisions of the Mining Act nor the provisions of the Mining Regulations prevented the mineral leases from expiring by effluxion of time. As already mentioned when dealing with question 5, the minute from the Minister for Minerals and Energy to the Minister for Environment did not constitute consent to the transfer of the leases and so did not prevent the mining leases expiring by effluxion of time.
For all of these reasons the trial judge was correct in concluding that the mining leases had expired by effluxion of time and did not remain extant.
Question 8
“Was the Minister for Minerals and Energy obliged to renew the Mining Leases upon receipt of the applications for renewal by BHP on 6 November 2000?”
The trial judge answered this question, No.
By reason of s 38(3) the Minister for Minerals and Energy was under a duty to renew the mining lease and could do so any time after the application for renewal and even after the expiry of the mining lease: s 38(4). However, the provisions of s 38(4) did not prevent BHP from withdrawing its application. For the reasons just given, BHP was at liberty to withdraw its application for renewal. The trial judge correctly answered this question.
Question 9
“Was the purported withdrawal by BHP of their (sic) application to renew the Mining Leases by letter dated 7 February 2001 effective?”
The trial judge correctly answered this question, Yes. For the reasons already expressed BHP was entitled to withdraw its applications.
Question 10
“Should the plaintiffs be denied orders in the nature of prerogative and/or declaratory relief on the grounds that such relief would be of no utility?”
The judge did not directly answer this question but noted that it was inevitable that the plaintiff’s claim must fail. As is apparent from its terms, this question concerns the appropriateness of the relief sought. The answers which have been given to questions 1 to 9 have the consequence that the plaintiffs’ claims must fail. The Minister of Environment had refused consent to the transfer of the mining leases from BHP to Manna Hill. The mining leases have lapsed. There is an obvious futility in these proceedings. This question should be answered, Yes.
Manna Hill also contended that the trial judge ought to have made an interim order in the nature of an injunction to restrain BHP from withdrawing its application to renew its leases. That contention is grounded on the following facts. On 31 January 2001 the plaintiffs applied for leave to serve the summons herein from the trial judge. The judge expressed some reservations about the likelihood of the plaintiffs being successful, particularly as BHP’s mining leases expired on 7 February 2001. As the application for leave to serve was made ex parte, the State of South Australia did not appear and was not heard. The application was adjourned to 5 February 2001. On that occasion the State of South Australia appeared and was represented by Mr Walter, the Crown Solicitor. The judge was informed that Mr David Moore, Managing Director of Manna Hill, had spoken to senior executives of BHP and that Mr Moore believed that BHP might support the preservation of the status quo pending the hearing and determination of the questions in the summons. However, no application was made by Manna Hill to restrain BHP from withdrawing its applications for the mining leases. The application for leave to serve was adjourned to 23 February 2001. When it resumed, the judge was informed that BHP had withdrawn its applications for the mining leases and that the leases had expired. The Crown Solicitor was not aware of that development until the morning of 23 February. The matter was further adjourned and, ultimately, leave to appeal was obtained. Manna Hill says that the judge ought to have taken some step to prevent BHP from withdrawing its applications to renew the mining leases.
This recitation of the facts demonstrates that there was no basis for the judge to make an order. In addition, there was no application before the judge to make any order restraining BHP. BHP’s action was not, it seems, anticipated by either Manna Hill or the Crown Solicitor or the judge. In any event, in the absence of an application by Manna Hill and evidence to justify the making of an order, the judge was not at liberty to make any order restraining BHP. For these reasons, Manna Hill’s contention is entirely unfounded.
Finally, Manna Hill asserted that the decision of the Minister for Environment was unreasonable and should be set aside on that ground. Although that issue was not determined by the trial judge, it is possible to deal with it. In order to succeed on this ground, Manna Hill must establish that the decision was of a kind that no reasonable Minister for Environment could reach: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Nothing was advanced which demonstrated that the decision was unreasonable. This contention therefore fails.
Manna Hill also contended that the judge had questioned the propriety of the second plaintiff being a party to the action. It is clear from the reasons of the judge that he referred to the second plaintiff only when reciting the facts leading to the action and for the purpose only of mentioning a submission which had been made to him. It is equally clear that the position of the second plaintiff was in no sense material to his reasons for answering the questions.
Manna Hill has not been able to demonstrate any flaw in the reasons of the trial judge. For the reasons already given, all of its contentions must fail. It follows that this appeal must be dismissed.
WILLIAMS J I agree that this appeal should be dismissed for the reasons given by Debelle J.

[2002] SASC 432

20 December 2002