KIEFEL CJ, GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ
MINERALOGY PTY LTD & ANOR PLAINTIFFS
AND
STATE OF WESTERN AUSTRALIA DEFENDANT
Mineralogy Pty Ltd v Western Australia
[2021] HCA 30
Dates of Hearing: 15, 16, 17 & 18 June 2021 Date of Judgment: 13 October 2021
B54/2020
ORDER
The questions of law stated in the Special Case filed on 8 April 2021 be answered as follows:
1.Is the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) ("2020 Act") invalid or inoperative in its entirety?
Answer: No.
2. If the answer to question 1 is "no", are any of the following parts or provisions of the 2020 Act invalid or inoperative (and, if so, to what extent):
(a) Part 3;
(b)Subsections 8(3)-(5);
(c)Subsections 9(1)-(2);
(d) Subsections 10(4)-(7);
(e)Subsections 11(1)-(7);
(f)Subsections 12(1)-(2) and (4)-(7);
(g) Subsections 13(4)-(8);
(h)Section 14;
(i)Subsection 15(5)(b);
(j)Subsection 16(3);
(k)Subsections 17(4)-(5);
(l)Subsections 18(1)-(3) and (5)-(7);
(m)Subsections 19(1)-(7);
(n)Section 20;
(o)Subsections 21(4)-(8);
(p)Section 22;
(q)Subsection 23(5)(b);
(r)Subsection 24(3);
(s)Subsections 25(4)-(5); and/or
(t)Sections 30 and 31.
Answer:Sections 9(1) and 9(2) and 10(4) to 10(7) of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA), as inserted by the 2020 Act, are not invalid or inoperative to any extent. The question is otherwise unnecessary to answer.
3.If the answer to question 2 is "yes", are any or all of the invalid provisions of the 2020 Act severable such that the 2020 Act is capable of operating to the extent of the remaining valid provisions?
Answer: The question does not arise.
4.By whom should the costs of this Special Case be paid?
Answer: The plaintiffs.
Representation
D F Jackson QC with M A Karam and H C Cooper for the plaintiffs (instructed by Jonathan Shaw)
J A Thomson SC, Solicitor-General for the State of Western Australia, with S J Free SC, J E Shaw and Z C Heger for the defendant (instructed by State Solicitor's Office (WA))
S P Donaghue QC, Solicitor-General of the Commonwealth, with F I Gordon, T M Wood and J G Wherrett for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales, with J S Caldwell for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office NSW)
N Christrup SC, Solicitor-General for the Northern Territory, with L S Peattie for the Attorney-General for the Northern Territory, intervening (instructed by Solicitor for the Northern Territory)
R J Orr QC, Solicitor-General for the State of Victoria, with G A Hill and M‑Q T Nguyen for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor's Office)
E J Longbottom QC with F J Nagorcka for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law Qld)
Notice: This copy of the Court's Reasons for…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Mineralogy Pty Ltd v Western Australia [2021] HCA 30
Case
[2021] HCA 30
Decision Date
CaseChat Overview and Summary
Mineralogy Pty Ltd and other co-proponents commenced proceedings in the High Court of Australia's original jurisdiction against the State of Western Australia. The dispute concerned the validity of the *Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020* (WA) (the Amending Act), which purported to amend an earlier State Act and an agreement scheduled to it. The plaintiffs sought declarations that the Amending Act was invalid, alleging it contravened the *Australia Act 1986* (Cth), exceeded the State Parliament's legislative power by infringing the rule of law or deeply rooted common law rights, and was incompatible with Chapter III of the Australian Constitution and section 118 of the Constitution. The parties agreed to state questions of law for the Court's determination by way of a special case.
The High Court was required to determine several legal issues. These included whether the Amending Act was invalid in its entirety, and if not, whether specific provisions, particularly those that would deprive certain proposals of legal effect and arbitral awards of legal effect, were invalid or inoperative. The Court also had to consider whether any invalid provisions were severable. Furthermore, the Court was asked to determine if the facts and documents presented in the special case were sufficient to necessitate answering the stated questions of law for the determination of the parties' immediate rights, duties, or liabilities.
The Court reasoned that the Amending Act was not invalid in its entirety. It found that sections 9(1) and 9(2), and sections 10(4) to 10(7) of the *Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002* (WA), as inserted by the Amending Act, were not invalid or inoperative. The Court considered that the remaining questions regarding the invalidity of other provisions were unnecessary to answer given this conclusion. The Court also determined that the question of severability did not arise. The Court ultimately answered the questions posed in the special case as proposed in the joint judgment.
Orders
Orders of the court
The questions of law stated in the Special Case filed on 8 April 2021 be answered as follows:
1. Is the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) ("2020 Act") invalid or inoperative in its entirety?
Answer: No.
2. If the answer to question 1 is "no", are any of the following parts or provisions of the 2020 Act invalid or inoperative (and, if so, to what extent):
(a) Part 3;
(b) Subsections 8(3)-(5);
(c) Subsections 9(1)-(2);
(d) Subsections 10(4)-(7);
(e) Subsections 11(1)-(7);
(f) Subsections 12(1)-(2) and (4)-(7);
(g) Subsections 13(4)-(8);
(h) Section 14;
(i) Subsection 15(5)(b);
(j) Subsection 16(3);
(k) Subsections 17(4)-(5);
(l) Subsections 18(1)-(3) and (5)-(7);
(m) Subsections 19(1)-(7);
(n) Section 20;
(o) Subsections 21(4)-(8);
(p) Section 22;
(q) Subsection 23(5)(b);
(r) Subsection 24(3);
(s) Subsections 25(4)-(5); and/or
(t) Sections 30 and 31.
Answer: Sections 9(1) and 9(2) and 10(4) to 10(7) of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA), as inserted by the 2020 Act, are not invalid or inoperative to any extent. The question is otherwise unnecessary to answer.
3. If the answer to question 2 is "yes", are any or all of the invalid provisions of the 2020 Act severable such that the 2020 Act is capable of operating to the extent of the remaining valid provisions?
Answer: The question does not arise.
4. By whom should the costs of this Special Case be paid?
As to the third criterion, although s 36 involves a discretionary power it is only in very limited circumstances that a court would exercise the discretion in s 36 not to refuse to recognise or enforce an arbitral award where conditions such as the invalidity of the arbitration agreement are established. The limited scope of the discretion was discussed by Lord Collins of Mapesbury JSC in Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan[165] in the course of considering the discretion contained in s 103(2)(b) of the Arbitration Act 1996 (UK), which enacts Art V(1)(a) of the New York Convention[166] and provides, in similar terms to s 36 of the Commercial Arbitration Acts, that recognition or enforcement "of the award may be refused" if the arbitration agreement was not valid under the relevant law. His Lordship said that the discretion enabled the court to consider circumstances "which might on some recognisable legal principle affect the prima facie right to have an award set aside"[167]. The plaintiffs did not rely upon any such legal principle independently of their grounds for challenging the validity of the Declaratory Provisions. The consequence, therefore, is that if they are valid then the Declaratory Provisions preclude any State from recognising or enforcing the arbitral awards of 20 May 2014 and 11 October 2019. There is no inconsistency between the Declaratory Provisions and the effect of an arbitral award in States other than Western Australia.[165][2011] 1 AC 763.[166]Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. See also Paulsson, "May or Must Under the New York Convention: An Exercise in Syntax and Linguistics" (1998) 14 Arbitration International 227.[167][2011] 1 AC 763 at 843 [127].Conclusion The questions in the special case should be answered as proposed in the joint judgment.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, GAGELER, KEANE, GORDON, STEWARD AND GLEESON JJ,