Midcoast Lime Co Pty Ltd v Minister for Primary Industries

[2008] NSWSC 331

CITATION:	Midcoast Lime Co Pty Ltd v Minister for Primary Industries [2008] NSWSC 331
HEARING DATE(S):	1 November 2007, 2 November 2007
JUDGMENT DATE :	15 April 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Rothman J
DECISION:	(i) The summons in this matter be dismissed; (ii) The plaintiff shall pay the defendants' costs of and incidental to the proceedings, as agreed or assessed.

CATCHWORDS:	MINING – exploration licences – jurisdiction of Mining Warden's Court – jurisdiction of Minister on grant and renewal of exploration licence – proper construction of Mining Act – factors that may be taken into account but not bound to do so - ADMINISTRATIVE LAW – appeal from Mining Warden's Court – nature of proceedings in Mining Warden's Court – nature of appeal to Court – relevant factors – not irrelevant factors – alleged jurisdictional error – alleged administrative error – failure to consider factors – Wednesbury unreasonableness.
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Mining Act 1992 Survey (Geometric Datum of Australia) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 Australian Retail Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; (1996) 186 CLR 389 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 Hunter Resources Limited v Melville [1988] HCA 5; (1988) 164 CLR 234; (1988) 62 ALJR 88 Krishna v DPP (NSW) [2007] NSWCCA 318 M v R [1994] HCA 63; (1994) 181 CLR 487 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Morris v R [1987] HCA 50; (1987) 163 CLR 454 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 R v Isaac; Ex parte Transport Workers' Union [1985] HCA 80; (1985) 159 CLR 323 R v R (1989) 18 NSWLR 74 Re Coldham Ex Parte Brideson [No. 1] [1989] HCA 2; (1989) 166 CLR 338 Re Our Town FM Pty Limited and Newcastle Stereo Radio Pty Limited v Australian Broadcasting Tribunal and Newcastle FM Pty Limited [1987] FCA 301; (1987) 16 FCR 465 Williams v R [1987] HCA 36; (1986) 161 CLR 278
PARTIES:	Midcoast Lime Company Pty Limited (First Plaintiff) Mudgee Dolomite & Lime Pty Ltd (Second Plaintiff) Australian Lime Company Pty Ltd (Third Plaintiff) Minister for Primary Industries (First Defendant) Mr Ellis Walker (Second Defendant)
FILE NUMBER(S):	SC 30029/2007
COUNSEL:	M Allars (Plaintiffs) N Perram SC/ S Free (First Defendant) D Williams (Second Defendant)
SOLICITORS:	J M Glass & Son Solicitors (Plaintiffs) Crown Solicitor's Office (First Defendant) Moore & Co Solicitors (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

15 APRIL 2008

30029/07 Midcoast Lime Company & 2 Ors v Minister for Primary Industries & Anor

JUDGMENT

1 HIS HONOUR: Midcoast Lime Company Pty Limited (Midcoast Lime) is in dispute with Mr Ellis Walker about the purported grant to Mr Walker of an exploration licence. The dispute has some history. It came before the Mining Warden’s Court (the Warden’s Court) and, by decision dated 10 January 2007, the Mining Warden dismissed Midcoast Lime’s challenge to the validity of the exploration licence granted by the Minister for Primary Industries (the Minister).

2 Midcoast Lime appeals the decision of the Warden’s Court. The Minister is the first defendant in these proceedings. Mr Walker is the second defendant and the Mining Warden was initially, but is no longer, the third defendant. There is, or was, a joint venture between Mudgee Dolomite and Australian Lime (the second and third plaintiffs respectively) and Midcoast Lime, but there is no difference in their interests and, except where necessary, reference will be made only to Midcoast Lime.

The Appeal

3 The appeal is brought pursuant to the terms of s 321(1)(b) of the Mining Act 1992, which treats the decision as if it were a sentence imposed by the Local Court and subject to appeal pursuant to the terms of the Crimes (Appeal and Review) Act 2001 in the same manner as a sentence imposed as a result of proceedings arising from a Court Attendance Notice.

4 The combination of the Mining Act and the Crimes (Appeal and Review) Act gives a right to Midcoast Lime to appeal against the decision of the Warden’s Court, if confined to “a ground that involves a question of law alone”: s 52 of the Crimes (Appeal and Review) Act. If the ground raised in the appeal is not a question of law alone, but a question of fact or a question of mixed law and fact, leave to appeal is required: s 53 of the Crimes (Appeal and Review) Act.

5 The distinction between the question of law, on the one hand, and other questions, on the other, is the subject of much authority. On the issue of whether a ground is one which involves “a question of law alone”, I refer to my comments in the judgment of the Court of Criminal Appeal in Krishna v DPP (NSW) [2007] NSWCCA 318 at [44] to [50]. It is sufficient for present purposes to refer to the passage from the judgment of the Full Court of the High Court of Australia in Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; (1996) 186 CLR 389 at 395, in which their Honours said:

“In Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 the Full Federal Court spoke of the distinction between law and fact in a statutory context as resting upon ‘value judgement[s] about the range of [an] Act’ which, the Court said, necessarily raised questions of law at 289.

Some recent Federal Court decisions have attempted to distil the numerous authorities on the problem into a number of general propositions. Thus in Pozzolanic at 287 , after referring to many cases, the Court identified five general propositions:

‘1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law: Jedko Game Co v Collector of Customs (NSW) (1987) 12 ALD 491; Brutus v Cozens [1972] UKHL 6; [1973] AC 854.

2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact: Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18 ; (1925) 36 CLR 60 at 78; NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1955] HCA 23; (1956) 94 CLR 509 at 512; Neal v Department of Transport (1980) 3 ALD 97 at 107-108; Jedko (1987) 12 ALD 491.

3. The meaning of a technical legal term is a question of law: The Australian Gas Light Co v The Valuer-General (1940) 40 SR(NSW) 126 at 137-138; Lombardo v Federal Commissioner of Taxation [1979] FCA 65; (1979) 40 FLR 208 at 215.

4. The effect or construction of a term whose meaning or interpretation is established is a question of law: Life Insurance Co of Australia [1925] HCA 18; (1925) 36 CLR 60 at 79.

5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 at 277 per Sheppard and Burchett JJ.’”

6 As discussed in Krishna, supra, an appellant under these provisions, to claim a right of appeal, must not only satisfy the Court that the ground raised is, or involves, a question of law, but that it involves nothing more than the question of law: see reference in Krishna to Williams v R [1987] HCA 36; (1986) 161 CLR 278; M v R [1994] HCA 63; (1994) 181 CLR 487; Morris v R [1987] HCA 50; (1987) 163 CLR 454; and R v R (1989) 18 NSWLR 74.

7 The grounds of appeal raised include: an error as to the jurisdiction being exercised and the question to be asked; an error as to the factors to be taken into account by the Mining Warden in determining the matter before the Court below; and an error in determining the extent of the Minister’s authority. It also raises the relevance of a document relied upon by the Mining Warden, in reaching the Court’s conclusion, as well as manifest unreasonableness of the Minister’s determination. Those latter two matters, although described by Midcoast Lime as errors of law, are, in reality, questions of mixed law and fact. The further grounds, which rely upon findings of fact relating to the knowledge of those involved in the decision-making, are not questions of mixed law and fact. To the extent that there are grounds of appeal on questions of fact or mixed law and fact, Midcoast Lime requires leave. To the extent necessary, in relation to any such ground of appeal, leave is granted.

Background Facts To The Issues Raised

8 As earlier stated, there is a dispute, of some duration, concerning the grant of one or more exploration licences (and the applications therefor) to Mr Walker and the treatment of Midcoast Lime. The background is a little complicated because there have been previous proceedings before the Warden’s Court (the First Warden’s Court Proceedings) concerning the validity of the respective grants of the exploration licences.

9 On 9 October 1997, the Minister granted EL 5358 (EL stands for exploration licence) to Mr Walker over one unit of land (Armidale Block 2697 Unit H) in respect of limestone. In 1999 the Survey (Geometric Datum of Australia) Act 1999 was promulgated, which effected an adjustment to the graticulation of the earth’s surface. The Act altered the Geometric Datum of Australia. The reason for this, which is only marginally relevant, was that the promulgation of satellite navigation systems, such as GPS, required a more precise coordinate system to take account of the fact that the earth is not spherical, but more pear shaped. The effect of the adjustment in the coordinate system was that all positions defined by latitude and longitude moved slightly. As a result, EL 5358, granted to Mr Walker, was slightly relocated and the limestone deposit, which was sought to be explored, was, in part, outside EL 5358.

10 On 23 July 2001, the Minister renewed EL 5358. On 30 July 2001, Mudgee Dolomite complained about EL 5358 and requested that EL 5358 not be renewed.

11 On 27 September 2001, Mudgee Dolomite and Australian Lime purchased the land within which Armidale Block 2697 Unit H (the land sought to be explored pursuant to EL 5358) is located. Midcoast Lime, Mudgee Dolomite and Australian Lime later formed a joint venture to undertake prospecting and mining on the land.

12 On 26 September 2002, Mr Walker applied, once more, for renewal of EL 5358. On 20 December 2002, Midcoast Lime lodged an application for an exploration licence, being ELA 2041 over Armidale Block 2625 Unit X and Armidale Block 2697 Units C, D, H, J, N and O. (ELA, as may be obvious, is an acronym, used by the Department, for Exploration Licence Application.)

13 By letter dated 8 December 2003, Midcoast Lime complained to the Minister about breaches by Mr Walker of both the Mining Act and the conditions of grant of EL 5358 and requested that EL 5358 be cancelled.

14 The Department sought to resolve these issues by offering to grant to Midcoast Lime an exploration licence over six of the units that were sought in the application ELA 2041, referred to above, namely, each of the units sought, except the unit for which Mr Walker already held the exploration licence, EL 5358.

15 By letter dated (and received) on 5 March 2004, Midcoast Lime rejected the offer of an exploration licence made by the Department. It gave the reason in the following terms:

“The reason for not proceeding further is that we have entered into an agreement to mine the minerals with the owners of the land, in the main area if (sic, read “of”) interest to us, which has been registered as Private Mining Agreement No. 23.”

16 On 23 March 2004, Mr Walker applied for a further exploration licence, being ELA 2316, over Armidale Block 2697, Units C, D, H and J.

17 On 11 August 2004, the Minister granted to Mr Walker EL 6278 for Armidale Block 2697 Units C, D, H and J, in accordance with Mr Walker’s application.

18 On 19 August 2005, the Warden’s Court held (the First Warden’s Court Decision) that EL 6278, granted on 11 August 2004, had been invalidly granted. Those proceedings, also taken by Midcoast Lime, challenged the validity of the grant of EL 6278 to Mr Walker on 11 August 2004. The grounds of the challenge were:

(a) that the grant was in fact a renewal of EL 5358 and invalid as it covered a larger area;

(b) the licence was granted by a person who did not hold an appropriate delegation from the Minister;

(c) the Minister had not, prior to the grant of EL 6278, determined the application by Midcoast Lime that EL 5358 (the original exploration licence granted to Mr Walker) should be cancelled; and

(d) the application for an exploration licence, being ELA 2041, lodged by Midcoast Lime, had not been withdrawn by Midcoast Lime prior to the grant of EL 6278, the consequence of which was that the grant to Mr Walker, over the same areas as were subject to the application by Midcoast Lime, was invalid.

19 Midcoast Lime also made complaint about the lack of work under EL 5358 (it being a ground for cancellation of an exploration licence that the holder of the licence fails to use the land in good faith for the purposes for which the licence was granted).

20 In its decision of 19 August 2005, the Warden’s Court accepted the decisions of the Minister and dismissed the grounds of challenge, except in relation to the ground based upon the fact that Midcoast Lime’s application for an exploration licence (ELA 2041) had not been withdrawn prior to the grant of the exploration licence to Mr Walker (EL 6278).

21 Following the First Warden’s Court Decision, the Department issued a briefing note on the proceedings before the Warden’s Court and the relationship between the private mining agreement, the exploration licence application and the exploration licence held or granted to one or more of Midcoast Lime and Mr Walker. Previous briefing notes had been provided to the Minister or the Minister’s delegate. The Departmental briefing fairly accurately reflects the reasons for the First Warden’s Court Decision and makes the comment:

“The current situation has developed because ELA 2041 was treated as being withdrawn rather than being refused. Had the Department followed through with the refusal of ELA 2041 as indicated in the 20 February 2004 letter, rather than noting its withdrawal, the grant of EL 6278 would have been valid.


While ultimately it is a matter for the ETC [Exploration Licence Committee], it is noted that there is nothing currently preventing the Department from acting on its 20 February 2004 letter now and refusing ELA 2041 due to a lack of acceptance of the offer made in 2003. This would then give ELA 2316 [Walker’s ELA previously granted] priority over all other applications meaning it could be granted without requiring the consent of Midcoast Lime. Roche could then again be offered the three available units in satisfaction of ELA 2466. This result is likely to disappoint Roche and Midcoast Lime but in reality, it does nothing more than restore the situation as it should have been immediately prior to the lodgement of ELA 2316 by Walker.


The alternative to the above is to grant ELA 2041 for the six units available as previously offered to Midcoast Lime. However, this would ignore the fact that Midcoast Lime clearly stated in its 5 March 2004 letter that it did not wish to accept the offer of an EL in satisfaction of ELA 2041. Furthermore, it ignores the fact that at no time prior to the subject legal proceedings did Midcoast Lime ever challenge the Department’s treatment of ELA 2041 as having been withdrawn. Indeed, the original summons in the matter did not include this as an allegation and it wasn’t until the amended summon (sic) filed by the applicant that this allegation arose.”

22 On 16 September 2005, Midcoast Lime gave the Department a nine-page letter of complaint, containing certain allegations against Mr Walker. Midcoast Lime objected to the renewal of EL 5358.

23 On 18 November 2005, the Director-General, as delegate of the Minister, decided:

(a) to refuse ELA 2041 (the Midcoast Lime application for an exploration licence over Armidale Block 2625 Unit X and Armidale Block 2697 Units C, D, H, J, N and O);

(b) to renew EL 5358 (the exploration licence held by Mr Walker over Armidale Block 2697 Unit H); and

(c) to approve the making of a new offer to Mr Walker, in full satisfaction of ELA 2316 (the application made by Mr Walker on 23 March 2004 over Armidale Block 2697 Units C, D, H and J), and gave it the number EL 6507. A Departmental brief was signed by the Director-General to this effect.

Hereinafter, I will refer to the “Minister”, even though it was the Director-General that decided these matters as the Minister’s delegate.

24 On 13 March 2006, Midcoast Lime filed a complaint and summons in the Warden’s Court, which complaint was the subject of the decision of the Mining Warden now the subject to these proceedings.

The Warden’s Court Decision

25 On 10 January 2007, the matters before the Warden’s Court were claims by Midcoast Lime that:

(i) the rejection of the application for exploration licence ELA 2041 was unlawful and invalid;

(ii) the renewal of exploration licence for Mr Walker, being EL 5358, was unlawful and invalid; and

(iii) the approval of the exploration licence to Mr Walker of Armidale Block 2697 Unit C, D, H and J applied for in ELA 2316 and numbered EL 6507, was unlawful and invalid.

26 The Warden’s Court refused the relief sought by Midcoast Lime (which application was also sought by Mudgee Dolomite and Australian Lime).

27 In doing so, the Warden’s Court treated the application before it as an application for judicial review of the Director-General’s decisions and applied the principles of administrative law.

28 The Warden’s Court decision is challenged on the basis that:

(i) it was an error of jurisdiction to treat the proceedings before the Mining Warden as a judicial review;

(ii) the Mining Warden erred in holding there were no factors or matters that the decision maker was bound to take into account when deciding whether or not to renew EL 5358;

(iii) the Mining Warden erred in determining that the renewal of the exploration licence was within the Minister’s discretion;

(iv) the Mining Warden erred in not determining that the Minister failed to take into account all relevant considerations and particularly the nine-page document provided to the Minister at the meeting of 16 September 2005;

(v) the Mining Warden erred in not holding that the Minister’s decision was manifestly unreasonable;

(vi) the Mining Warden erred in determining that the Minister had considered the nine-page document referred to above;

(vii) the Mining Warden erred in finding that those involved in the decision making were cognisant of the dispute and the issues involved in it;

(viii) the Mining Warden erred in failing to determine that the Minister’s decision was so unreasonable that no decision maker, acting reasonably, could have made it.

29 The Mining Warden sets out a helpful chronology dealing with the events from 9 October 1997 through to 18 November 2005. His Honour then summarises the evidence (pages 8 to 13 of the decision) and deals with the submissions commencing at page 13 of his Honour’s decision.

30 It is clear, from the principles applied by the learned Mining Warden, that he approached the task before him as a task corresponding, or similar to, judicial review. He purports to apply Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 and makes specific reference to extra curial comments by Preston J, Chief Judge of the Land and Environment Court, in “Judicial Review of Illegality and Irrationality of Administrative Decisions in Australia”, 28 Aust Bar Review 17. His Honour cited authority on the proper application of principles relating to Wednesbury unreasonableness (a reference to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223). His Honour clearly dealt with the matter as if his Honour were exercising a form of judicial review.

31 His Honour noted that “there is nothing in the Act or Regulations which specifies matters which the Minister is bound to take into account when determining whether to grant or refuse an application for exploration licence, except for expressly giving a discretion in relation to an applicant having a conviction [s 22(2)]”. His Honour went on to remark:

“Having regard to the fact that the second defendant has not been convicted of any offence under the Mining Act 1992 or Regulations, or an offence concerning mining or minerals, nothing in this case exists which would be comparable to the situation in the Hunter Resources cases. Consequently, when considering to grant or refuse an exploration application in this instance, the decision maker has a wide discretion. It is this discretion, which the complainants want the court to determine, has been exercised without giving due consideration to issues raised by the complainants thus denying the complainants natural justice.”

The reference to Hunter Resources is a reference to the judgment of the High Court in Hunter Resources Limited v Melville [1988] HCA 5; (1988) 164 CLR 234; (1988) 62 ALJR 88.

32 His Honour noted that no party tendered any policy document that may exist for the purpose of assisting those who are required to make decisions under the Act. It was not suggested before the Warden’s Court, or here, that the actions of the Minister were inconsistent with any Departmental policy adopted in relation to these matters.

33 The “principal matters”, according to the Mining Warden, based upon what seemed to him to be the concerns of the complainants before the Warden’s Court, were the allegations in the nine-page document, to which reference has already been made. His Honour the Mining Warden rejected, as a matter of fact, that the nine-page document was not read. The Mining Warden also rejected, as a matter of fact, that the imperfections in the state of the file led to the decision makers being not properly informed, or misinformed. The Mining Warden accepted “that the files in question were not kept in a ‘perfect’ state” but was satisfied that those “involved with the decision-making were cognisant with the issues in dispute”.

34 His Honour remarked that there was a difference between a merit review and the task before the Warden’s Court and that, even if he were to determine that he would have come to a different conclusion, this does not translate into the overturning of the Minister’s decision. The Mining Warden relied on Wednesbury and Australian Retail Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 (per Weinberg J).

35 Lastly, the Mining Warden dealt with the point raised at the conclusion of the case, namely, the failure to re-offer the six units to Midcoast Lime, being the six units that were the subject of the offer by the Department referred to in [14] above. The Warden’s Court rejected the submission, because it was made late (after the case was otherwise closed), and because, when the Department opposed the matter being raised and intimated that it would seek to call evidence on the matter, Midcoast Lime did not pursue an application to reopen its case, amend its particulars and/or deal with the objection of the Minister and the application that the Minister should be allowed to call new evidence.

36 In conclusion, the Mining Warden cast doubt as to the reasons why Mr Walker’s exploration licence was renewed, but accepted that the issues raised were considered by the decision maker and that he was bound by authority and constrained, in his role as the Warden’s Court, not “to interfere as an arbiter of the correctness of one view over another”.

Ground 1: Jurisdictional Error

37 Midcoast Lime proceeded before the Warden’s Court under s 296(p) of the Mining Act. That provision is in the following terms:

“A Warden’s Court has jurisdiction to hear and determine proceedings relating to any of the following matters:

(p) any question or dispute as to the validity of the granting of an authority or mineral claim.”

38 In these proceedings, Midcoast Lime submits that the Warden’s Court was exercising an original jurisdiction, not one confined to error of law or error of jurisdiction. As earlier stated, the Warden’s Court approached its jurisdiction under s 296(p) of the Mining Act as an exercise of “judicial review” and applied, or purported to apply, administrative law tests to the correctness of the Minister’s decision. Midcoast Lime submits that, in this approach, the Warden’s Court was in error and the error is an error of law. Midcoast Lime’s submission commences with the definition of certain terms in s 296(p) of the Mining Act.

39 The term “authority” is defined in the Dictionary to the Mining Act to include an exploration licence and s 296(p) of the Mining Act clearly applies to the granting by the Minister of the exploration licence.

40 Midcoast Lime submits that the introductory words “relating to” are words of wide import and that therefore exists a “broad scope” to the jurisdiction conferred by s 296(p). Further, Midcoast Lime submits that the words “any question or dispute” broadened the term beyond mere administrative law principles. Lastly, Midcoast Lime suggests that, notwithstanding that its application before the Warden’s Court raised s 296(p), the Mining Warden ought to have investigated and exercised jurisdiction under other sub-paragraphs, in particular s 296(o) and s 296(r) of the Mining Act.

41 I accept that the words “relating to” are words of wide import that are used to describe a relationship between one thing and another. In this case, it would require a relationship between that which is sought to be agitated and “the question or dispute as to the validity” of the Minister’s grant of licence. Such relationship does not need to be causal. Nor does it need to be of a particular temporal basis: it can be a relationship with a contemplated future event, a past event or a present circumstance. It has similar meaning to the words “in connection with”: see R v Isaac; Ex parte Transport Workers’ Union [1985] HCA 80; (1985) 159 CLR 323 at 334-335; Re Our Town FM Pty Limited and Newcastle Stereo Radio Pty Limited v Australian Broadcasting Tribunal and Newcastle FM Pty Limited [1987] FCA 301; (1987) 16 FCR 465 at 479-480.

42 But the width of the expression “relating to” still requires proceedings that have some connection to the “question or dispute as to the validity” of the Minister’s decision. A question or dispute as to the validity of the Minister’s decision, is not a question or dispute as to its correctness. Validity has a particular meaning, and the legislature has deliberately used it. The Warden’s Court is not, by virtue of any jurisdiction conferred by s 296(p), put in the place of the Minister to determine whether the Minister was correct, or otherwise, in granting an exploration licence. Rather, s 296(p) of the Mining Act grants to the Warden’s Court the jurisdiction to deal with the validity of such grant. As Midcoast Lime rightly concedes “the term ‘validity’ in s 296(p) tends to evoke administrative law principles as to whether a decision is invalid”. It is difficult to conceive of an argument that it raises any other consideration. On one view, the reference to the term “validity” in s 296(p) of the Mining Act may be a narrower jurisdiction than some considerations that may otherwise come within the phrase “administrative law principles”. It is unnecessary for me to determine that question.

43 Certainly “administrative review” would include a denial of natural justice, the failure to take into account all relevant (and no irrelevant) considerations, the identification of a wrong issue or the addressing of a wrong question that affects the exercise or purported exercise of power. If such can be demonstrated, then power or authority is exceeded and there will be jurisdictional or administrative error: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179.

44 However, the Warden’s Court, like any court dealing with the “validity” of an administrative decision, was required to bear in mind the injunction of the High Court that the duty and jurisdiction of the courts to review administrative action do not go beyond the declaration and enforcing of the law insofar as that law determines the limits and governs the exercise of the power reposed in the administrative decision maker. The courts have no jurisdiction simply to cure administrative injustice or error. The merits of an administrative decision, or of administrative action, to the extent that such is not a reference to the legality of the administrative decision or action, are for the administrative decision maker, not the courts: see Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.

45 The Warden’s Court has jurisdiction to hear and determine proceedings relating to a question or dispute as to the validity of the Minister’s grant of the exploration licence. The conferral of jurisdiction in those terms limits the role of the Warden’s Court under s 296(p) to matters truly relating to a question or dispute as to the “validity” of the grant and is, necessarily, confined to administrative law principles.

46 As already noted, Midcoast Lime also criticised the decision of the Warden’s Court on the basis that it concerned itself only with s 296(p) of the Mining Act. That sub-paragraph was, of course, the major thrust of the submissions that were put to the Mining Warden. However, Midcoast Lime submits that the proceedings before the Warden’s Court were proceedings that raised s 296 more generally and did not specify or confine itself to s 296(p) of the Mining Act. Midcoast Lime submits that error occurred in that the Warden’s Court had jurisdiction to go beyond administrative law principles, because it had jurisdiction under other sub-paragraphs of s 296 of the Mining Act to deal with the issues and dispute between the parties in these proceedings.

47 When pressed, it was said that the broader jurisdiction was conferred by the terms of s 296(o) and s 296(r) of the Mining Act. Those sub-paragraphs are in the following terms:

“A Warden’s Court has jurisdiction to hear and determine proceedings relating to any of the following matters:

(o) all rights claimed in, under or in relation to an authority or mineral claim or purported authority or mineral claim,

…


(r) any question or dispute in connection with an interest (whether legal or equitable) in, or affecting, an authority or mineral claim.”

48 However, assuming, without deciding, that the Warden’s Court had before it an application that would warrant a consideration of s 296(o) or s 296(r) of the Act, those provisions do not take Midcoast Lime any further in showing jurisdictional error.

49 The dispute between the parties in these proceedings (and before the Warden’s Court) was a dispute as to whether an exploration licence should be granted (or renewed) or refused, not what rights existed in, under, or in relation to, any authority once granted, already granted, or to be granted. Further, and likewise, the question or dispute between the parties was not “in connection with” an interest in or affecting the exploration licence. I accept that the words “in connection with” are words of the widest import. (See, before, the discussion on “relating to”.) The question or dispute, relating to the renewal or refusal of the two relevant exploration licences, was not a question or dispute in connection with an interest in or affecting the authority. The interest in land, held by Midcoast Lime or its joint venture partners, to the extent that it affected the exploration licence, was not the subject of dispute or question. In other words, there was no question or dispute in connection with the interest in land held by Midcoast Lime or any one of its joint venture partners, assuming, without deciding, that such an interest in land affected the exploration licence. Nor was there a question or dispute in connection with an interest in or affecting any licence, unless it can be said that a dispute about who should obtain an interest not yet granted is such a dispute. It is not. The “interest” in s 296(3) is a present, future or existing interest (and probably includes contingent interests), but does not include the desire to obtain an interest.

50 Moreover, the provisions of s 296(o) and s 296(r) of the Mining Act still require the determination of legal questions and do not place the Warden’s Court into the shoes of the Minister, allowing it to consider afresh the grant, renewal or refusal of the exploration licence, or to reconsider, on the basis of correctness or merit (as distinct from legality or validity), the decision of the Minister.

Ground 2: Jurisdictional Error In Holding There Were No Factors The Minister Was Bound To Take Into Account

51 Ground 2 of the Summons (see [28] above), in its terms, was not pursued in the submissions before this Court. Nevertheless, it forms an aspect of one of the other submissions that was put and was raised in the summons. As raised in the summons, this is a ground that purports to allege error, because there was a finding that there were no “mandatory” factors that the Minister was bound to take into account and did not take into account. This is a reference to the judgment of the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.

52 In its submissions, Midcoast Lime criticised the use of the term “mandatory” when referring to considerations and referred to the criticism in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355. However, Midcoast Lime’s criticism is unwarranted. First, the High Court in Project Blue Sky utilised the term “mandatory”, even after it criticised its use. More substantively, the criticism of the High Court is in the area of statutory construction and is based on the circulatory of the process. Instead of construing a statute to determine whether it requires strict or substantial compliance, past analyses had commenced with the proposition that the terms were “mandatory” to prove what then follows, namely, that strict compliance was essential. Ultimately, the High Court required an analysis of the statute that gave priority to the words, purpose and policy of the statute, rather than the labels describing them.

53 Midcoast Lime submits that the first of the principles, adumbrated by Mason J (as he then was) in Peko-Wallsend, is that “where a broad discretionary power is conferred, that power is structured by considerations which are not expressly stated in the Act”. In Peko-Wallsend, Mason J, with whom, relevantly, Gibb CJ and Dawson J agreed, expressed the principles in the following way:

“(1) Failure to take into account a relevant consideration

15. The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s.5(2)(b) of the ADJR Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:


(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision (Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363, at p 375; CREEDNZ Inc. v. Governor-General (1981) 1 NZLR 172, at pp 183, 196-197; Ashby v. Minister of Immigration (1981) 1 NZLR 222, at pp 225, 230, 232-233). The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223, at p 228, that a decision-maker must take into account those matters which he ‘ought to have regard to’ should not be understood in any different sense in view of his Lordship’s statement on the following page that a person entrusted with a discretion ‘must call his own attention to the matters which he is bound to consider’.


(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury [1937] HCA 15; (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning [1947] HCA 21; (1947) 74 CLR 492, at p 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.


(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision (see, for example, the various expressions in Baldwin & Francis Ltd v. Patents Appeal Tribunal (1959) AC 663, at p 693; Hanks v. Minister of Housing and Local Government (1963) 1 QB 999, at p 1020; Reg. v. Chief Registrar of Friendly Societies; Ex parte New Cross Building Society (1984) QB 227, at p 260). A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision (Reg. v. Bishop of London (1889) 24 QBD 213, at pp 226-227; Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd (1982) 3 All ER 761, at pp 769-770).

(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at p.228). It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power (Sean Investments Pty Ltd v. MacKellar, at p 375; Reg. v. Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177, at p 205; Elliott v. Southwark London Borough Council (1976) 1 WLR 499, at p 507; (1976) 2 All ER 781, at p 788; Pickwell v. Camden London Borough Council (1983) QB 962, at p 990). I say ‘generally’ because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’.

…

(e) The principles stated above apply to an administrative decision made by a Minister of the Crown (Murphyores Incorporated Pty Ltd v. The Commonwealth [1976] HCA 20; (1976) 136 CLR 1; Re Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 53 ALJR 552; 25 ALR 497; Padfield v. Minister of Agriculture, Fisheries and Food [1968] UKHL 1; (1968) AC 997; Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1976] UKHL 6; (1977) A.C. 1014). However, in conformity with the principle expressed in (b) above, namely that relevant considerations may be gleaned from the subject matter, scope and purpose of the Act, where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion.”

54 Midcoast Lime submits that “where a broad discretionary power is conferred, that power is structured by considerations which are not expressly stated in the Act”. This, Midcoast Lime submits, is “the first of the principles described by Mason J” in Peko-Wallsend (see above).

55 Midcoast Lime submits, after stating the need to determine whether adumbrated criteria are exhaustive or merely inclusive, that, in the case of a broad unstructured discretionary power or a power exercisable on consideration of criteria that are not exhaustive, “the court should turn to the general test in relation to which considerations the decision-maker is bound to take into account, given the subject matter, scope and purpose of the statute”. But the submission, thereafter, does not discriminate between that which is relevant and binding, on the one hand, and, on the other hand, that which is not irrelevant.

56 The submission of Midcoast Lime conflates the factors in (b) above and has ignored the injunction of the High Court that, in a judicial review of an exercise of discretion, the decision maker will not be bound to take a particular matter into account “unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act”.

57 As has been made clear, statutory discretions are never unfettered. The exercise of a discretion granted by statute is conditioned by the subject matter, scope and purpose of the Act: Re Coldham Ex Parte Brideson[No. 1] [1989] HCA 2; (1989) 166 CLR 338 at 347; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 49, 50. Likewise, there may be implications in the subject matter, scope and purpose of the Act that allow for considerations to be taken into account as relevant considerations. It is quite another step to imply that such considerations are bound to be taken into account.

58 The considerations to which Midcoast Lime point, and which Midcoast Lime submit the Minister is bound to consider, were the matters raised in the complaint of Midcoast Lime (the document previously referred to as a nine-page document). Those complaints were that:

(i) Mr Walker had failed to comply with his obligations in condition 42 to EL 5358 to “effectively and safely prospect the subject area”;

(ii) since the issue of EL 5358 on 9 October 1997, Mr Walker had carried out no exploration other than the drilling of six holes;

(iii) the six wall-holes were drilled outside the area which was now within EL 5358 without an access agreement with Midcoast Lime, which was a breach of s 8 of the Mining Act ;

(iv) on 11 February 2002, Mr Walker bulldozed a track outside the exploration area of EL 5358, again without the consent of Midcoast Lime;

(v) Mr Walker claimed that he had expended $1,200, but this was not directed at any part of EL 5358;

(vi) Mr Walker had failed to comply with condition 41 of EL 5358 (expenditure and operations to be no less than $5,000 per annum while the licence is in force);

(vii) Mr Walker had failed to comply with conditions 43 and 44 (the submission of annual and interim reports);

(viii) Mr Walker had failed to comply with condition 48 (exploration report to be prepared by a nominated technical manager);

(ix) Mr Walker submitted technical reports said to be provided by a person other than the nominated technical manager and without the agreement of the Department in contravention of condition 48;

(x) Mr Walker had failed to comply with condition 17 (access tracks to be revegetated after they cease to be required for prospecting);

(xi) Mr Walker gave false statements, contrary to s 374 of the Act, as to whether:

(a) he had completed prospecting work;

(b) he expended $1,200 on any part of EL 5358;

(c) he received notification from the Department of the GDA shift; and

(d) he had an access agreement.

59 There are three fundamental barriers that Midcoast Lime must overcome in order to succeed on the submission above. First, it must prove, as a matter of fact, that the Minister (or his delegate) did not take into account the matters specified. That is an extremely difficult task. On 10 October 2005, the Exploration Titles Committee published a minute that, on the material before the Court, was part of a Director-General briefing relating to the dispute about the exploration licence and formed part of the material before the administrative decision maker. It is, at least, difficult, in those circumstances, to suggest that the matters were not the subject of consideration. Consideration of a factor does not involve the very different concept that the consideration will dictate a particular result.

60 The second difficulty to be overcome by Midcoast Lime is that each of the factors, to which the Complaint refers, are factors expressly described as considerations in other decision making processes that the Minister (or a delegate thereof) is required, from time-to-time, to make. Thus, a breach of the conditions of an exploration licence may be grounds upon which the Minister may cancel the licence. Further, a contravention of the Act, once proven, is a factor in a range of decisions to be made by the Minister. However, no breach of the Act by Mr Walker had been proved.

61 The third problem, and the most difficult to overcome, is that the submission conflates the construction of the Act and the determination that a consideration is relevant, with the determination that the relevant consideration is one that the Minister is bound to take into account. In other words, while it may well be the case (and for these purposes I accept it is the case) that the Minister may take into account, as a relevant consideration, conduct which would amount to a contravention of the Act, or failure to comply with conditions in the exploration licence, it is quite another concept to determine that such criteria are considerations that the Minister is bound to take into account. If the Minister were to take them into account, the decision would not be invalid by reason that the Minister had taken into account an irrelevant consideration, but the Minister was not bound to take them into account and failure to consider them also does not invalidate the decision. In 2HD, supra, the High Court said:

“The general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute. The fact that a discretion relating to a different subject matter is confined to a particular consideration provides no rational reason for saying that another discretion expressed without qualification does not embrace that particular consideration. Applied to the criterion of public interest, the argument is even less attractive. It would bring about the result, if accepted, that a discretion generally expressed may extend to any factor except public interest merely because another discretion directed to a very different subject matter is limited to the exclusive criterion of public interest” (at p 50 per Stephen, Mason, Murphy, Aickin and Wilson JJ).

But the statement of the High Court from 2HD, cited above, does not suggest that the consideration, or criterion, is one the decision-maker is bound to take into account. The considerations in this case, derived from the context, scope and purpose of statute, are not criteria that the decision-maker is bound to consider.

62 If I be wrong on the last mentioned matter, and the Minister were bound to take these considerations into account, on the material before the Court, I would find that the matters were put to the Minister, both directly and indirectly, properly summarised in so doing, and the Minister took them into account. Notwithstanding consideration of those matters, the Minister determined to take the action that he did and that action continues to be subject to challenge.

63 Further, and most importantly, the Warden’s Court found, as a fact, that these matters were before the Minister and considered in the decision-making process. That finding of fact does not, even in part, involve a question of law and the findings are not mixed law and fact. No error is disclosed in those findings and they ought not be disturbed. Further, to the extent required, I would find to the same effect.

64 An examination of the more detailed aspects of this submission is set out when the Court deals with Grounds 4, 6 and 7, but, for present purposes, it is sufficient to determine that the second ground of appeal fails because:

(a) there were no factors or matters that the decision maker was bound to take into account other than, irrelevantly, a conviction for an offence under the Act or related offences; and/or

(b) all relevant factors or matters, which Midcoast Lime submits the decision maker should have taken into account, were, as a matter of fact, taken into account.

Ground 3: Validity Of The Renewal Of The Exploration Licence

65 Midcoast Lime submits that the renewal of exploration licence EL 5358 was invalid because:

(a) the original EL 5358 had been cancelled on 11 August 2004 and there was no extant exploration licence to renew;

(b) in the alternative to (a), the exploration licence could not be renewed at the same time as Mr Walker was granted the exploration licence EL 6507 over the other blocks;

(c) the Warden’s Court did not deal with the above questions.

These grounds require an examination of the statute, but can be dealt with adequately without repeating at length the relevant provisions thereof.

66 Ground 3 of the Summons challenges the jurisdiction of the Minister to renew the exploration licence. The challenge is based on the provisions of s 113 and s 114 of the Mining Act which, in the case of s 113, does not seem to allow for a renewal for more than the area already held and which, in the case of s 114 of the Mining Act, prohibits renewal that includes land not previously covered by the licence and prohibits, except in special circumstances, renewal for more than half the units previously held.

67 The first of the bases submitted does not withstand scrutiny. As a matter of fact, the Minister had not cancelled EL 5358. The decision of the Warden’s Court did not have that effect. If anything it had the opposite effect.

68 The power of cancellation is contained in s 125 of the Mining Act, which allows the Minister to cancel an exploration licence in certain specified circumstances. There was no positive decision on an application for the cancellation of EL 5358 and there was no decision to cancel and no cancellation was issued. Further, none of the circumstances that would give rise to a cancellation under s 125 of the Mining Act have been proved. It is unnecessary to detail those circumstances or to analyse them. As a matter of fact, there has been no cancellation of EL 5358 under the Mining Act, at any stage.

69 The second ground of invalidity depends upon a construction of the Act and in particular s 19(1)(a) of the Act. The submission of Midcoast Lime depends on the effect of the grant to Mr Walker of EL 6278 over Armidale Block 2697 Units C, D, H and J, which grant was made on 11 August 2004. Midcoast Lime submits that because EL 5358 was granted (and first renewed) covering Armidale Block 2697 Unit H, s 19(1)(a) of the Mining Act has the effect that the grant of EL 6278 (Mr Walker’s later and broader exploration licence) either cancelled EL 5358 or vice versa. The submission is one of form over substance. Section 19(1)(a) prevents the grant of a licence over an area covered by another exploration licence “otherwise than … with the written consent of the holder of … that licence”. If, as was the case, EL 6278 covered an area covered by EL 5358, EL 6278 was granted with the consent of the holder of the licence, Mr Walker. That consent was in writing.

70 The provisions of s 32 of the Mining Act make clear that an exploration licence subsequently granted supersedes, to the extent of overlap, a previous exploration licence. However, such supersession, in this case, does not involve the cancellation of EL 5358. It is the inclusion of the rights contained in EL 5358 into EL 6278. Further, and alternatively, when, as occurred, the First Warden’s Court Decision declared EL 6278 invalid, it rendered it a nullity and void. EL 6278 was never validly granted and s 32 of the Mining Act never operated on EL 5358 in the manner submitted.

71 When the order declaring the invalidity of EL 6278 issued, the full status of EL 5358 was restored and, as restored, was capable of renewal.

72 Lastly, the First Warden’s Court Decision did not expressly restore EL 5358, because such an express restoration was unnecessary. Nor did the First Warden’s Court Decision set aside the cancellation of EL 5358. This is because there was never a cancellation of EL 5358.

73 Midcoast Lime also submits that EL 5358 expired on 8 October 2005 (the date of expiry under its terms as originally granted). The exploration licence, it is submitted, was not, therefore, capable of being renewed on 18 November 2005. This submission is inconsistent with a proper construction of the provisions of the Act.

74 Pursuant to the terms of s 113, Mr Walker applied for the renewal of EL 5358. This he did on 26 September 2002. Because of the intervention of the Warden’s Court and the declaration of invalidity previously mentioned, that application was not finally dealt with until 18 November 2005. As a consequence, the provisions of s 117(1) of the Mining Act operate to continue EL 5358 in effect until the Minister or his delegate has finally dealt with the application for the renewal (i.e. in this circumstance, from 8 October 2005 until 18 November 2005).

75 Somewhat contradictorily, Midcoast Lime submits that the Minister exceeded his power in granting EL 6507 (which, when effective, would supersede the renewed EL 5358), because the power to grant the new exploration licence is restrained by the factors limiting renewal of a licence that are prescribed in ss 113 and 114 of the Mining Act. Essentially, the submission of Midcoast Lime misunderstands what has occurred.

76 The submission is based upon the proposition that “there is no provision in the Act for a renewal, which expands the area of the licence”. This may be so. But the Mining Act does not restrict the capacity of the Minister, relevantly, to grant a new licence over areas not previously covered by a licence. Such a grant would not be a renewal and would, therefore, not be subjected to the conditions otherwise applicable to the renewal of a licence. The submission of Midcoast Lime has no merit. Once the Minister determined to expand, by the grant of a new licence, the area covered by an exploration licence to Mr Walker, it was no longer a renewal of EL 5358 (at least in the areas beyond EL 5358) and no limitations applying to renewals can apply to the grant of a new licence of such kind. The ground is rejected.

Grounds 4, 6 And 7: Error In The Application Of Judicial Review Principles

77 There is a degree of overlap between the issues raised in grounds 4, 6 and 7 in the summons and that raised in ground 2, with which the Court has already dealt.

78 At its highest, if the Court were convinced that the Warden’s Court misapplied the principles in Peko-Wallsend or, relevantly, misunderstood them, that may not of itself ground the issue of orders.

79 Grounds 4, 6 and 7 of the Summons are almost particulars of Ground 2 thereof, but raise the failure of the Minister to take into account the matters listed in the nine-page complaint and/or the matters in dispute. The matters, of which complaint was made, are set out in [58] above and generally particularise allegations of conduct that is in breach of the conditions of the licence or contravention of the Act. Such breach or contravention is a criterion for the exercise of the discretion of the Minister to cancel a licence already granted (s 125 of the Mining Act). Further, if the conduct in contravention of the Act led to a conviction, such conviction would be a consideration in the exercise of the Minister’s discretion to renew a licence.

80 I have already determined that the issues raised by Midcoast Lime do not amount to criteria that the Minister was bound to consider.

81 The Act must be construed bearing in mind the need to give effect to harmonious goals: Project Blue Sky, supra, at 381-382.

82 As earlier stated, if the Minister were to take into account the criteria in s 125 that are required grounds for the cancellation of a licence, in determining not to renew EL 5358 or not to grant EL 6507, they would not have been irrelevant considerations. It would be inconsistent with the purposes of the Act to require the Minister to grant or renew a licence in circumstances where the Minister could, immediately, cancel it. But it is a different question to require the Minister not to grant the licence in such circumstances.

83 The Minister, as has already been stated, had each of these considerations before him at the time that these decisions were made and took them into account. Even if that were not to have been the case, the provisions and criteria in s 125 of the Act, which expressly deal with the cancellation of licences, are not “mandatory considerations” in the determination to grant or renew a licence. Such a grant or renewal is conditioned by an express requirement, which does not apply, namely if Mr Walker had been convicted of an offence against the Mining Act or the regulations or other relevant offence: see s 22(2) of the Mining Act. It is unnecessary for me to decide, but there is strong argument, that where “conviction” for an offence is a consideration the Minister is bound to consider, conduct that could, but has not, led to a conviction is irrelevant.

84 In essence the submission of Midcoast Lime would amount to the proposition that even though the Act (s 22) requires the Minister to take into account a conviction, the provisions of s 114 of the Mining Act require him to take into account conduct that, if proved, would amount to a contravention of the Act and amount to contraventions of the conditions of a licence. It would have been extremely easy for the legislature to have expressly mandated such considerations, instead of expressing a much narrower consideration on the grant or renewal of a licence.

85 As stated, now more than once, the Minister, in fact, took into account the issues raised. Further, the Warden’s Court found, as a matter of fact, that all persons involved in the decisions were cognisant of the issues in dispute. That finding of fact should not be disturbed and, if it were open to the Court to do so, the Court would find to the same effect.

86 Midcoast Lime submits that because the Minister did not, in writing, make findings about the allegations raised in the opposition to the grant of the exploration licence, that was a refusal to take such opposition into account. This is an extension, by Midcoast Lime, of the principles associated with the requirement to take into account all relevant considerations and is not warranted. For that argument to succeed, there must be found in the legislation an implied obligation on the Minister to issue reasons and to make findings on every allegation or consideration that was taken into account. There is no legislative basis for the imposition of such a duty and there is no factual basis for an assertion that the Minister did not give consideration to the issue: see, by way of analogy, Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 at 452 [23] (per Gleeson CJ and McHugh J).

87 These grounds of appeal are also rejected.

Grounds: 5 And 8: Wednesbury Unreasonableness

88 As earlier stated, manifest unreasonableness is the exception to the proposition that courts, on review, are unable to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising a statutory power. However, Wednesbury unreasonableness is not satisfied merely by a determination, if it be a determination, that the court would have come to a different conclusion. A decision, within the boundaries of the exercise of discretion of the Minister, cannot be impugned by judicial review in a court: see Peko-Wallsend, supra, citing Wednesbury Corporation. In order to interfere on the ground of “unreasonableness”, the conclusion of the decision maker must be “manifestly unreasonable”.

89 This matter had a long and complicated history in which there was significant disputation between the holder of an exploration licence and those that sought to have that licence revoked in order that they may obtain the capacity to explore, and ultimately exploit, the limestone contained within the area covered by the exploration licence. Nothing that the Minister has done is manifestly unreasonable. That which was done was reasonably open to the Minister and this ground fails. Midcoast Lime has failed to satisfy the onus imposed upon it to convince the Court, to the civil standard, that the outcome and decisions made by the Minister, or his delegate, were manifestly unreasonable.

90 Essentially, the Minister had granted an exploration licence to Mr Walker. He altered that licence because of geometric data alterations. He renewed that licence over complaint by one or other of the joint venturers. On application for an exploration licence, Midcoast Lime (and the other joint venturers) were offered six units, not including that which was the subject of the exploration licence to Mr Walker. That offer was refused. The Minister treated the refusal as a withdrawal of the application and acted accordingly. The Warden’s Court, in its first decision, found, as a matter of law, that the application was still before the Minister and even though the offer of a licence was refused, the formal application had not been withdrawn. As a consequence, the first action of the Minister was held to be invalid.

91 The Minister, thereafter, effected the same conclusion as earlier sought be refusing the application by the joint venture (including Midcoast Lime), renewing the original exploration licence to Mr Walker and approving an offer of a new exploration licence over four units which licence, because part of it covered the area of the earlier licence, would supersede the first exploration licence. It did so for the reasons expressed in a number of Departmental briefs and minutes. None of the reasons, nor the outcome, is so unreasonable as to warrant an interference on the basis of the principle in Wednesbury.

Conclusion

92 As a consequence of the foregoing, each of the grounds, on which Midcoast Lime and its joint venture partners challenge the decision of the Warden’s Court, fails. There is no error of law. There is no error that warrants the interference of the Court, and the decision of the Minister was not manifestly unreasonable.

93 The Court makes the following orders:

(i) The summons in this matter be dismissed;

(ii) The plaintiff shall pay the defendants’ costs of and incidental to the proceedings, as agreed or assessed.

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