Minister for Resources v BHP Petroleum

[1994] HCATrans 31

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Melbourne     No M43 of 1994

B e t w e e n -

MINISTER FOR RESOURCES

Applicant

and

BHP PETROLEUM (TIMOR SEA)
  PTY LTD, PEKO OIL LTD, NORCEN
  INTERNATIONAL LTD, AMPOLEX
  LTD (Formerly AMPOL
  EXPLORATION LTD), SANTOS (NT)
  PTY LTD, BHP PETROLEUM PTY
  LTD and BHP PETROLEUM (CARTIER)
  PTY LTD

Respondents

Application for special leave
  to appeal

MASON CJ
BRENNAN J
DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 SEPTEMBER 1994, AT 11.36 AM

Copyright in the High Court of Australia

MR H.C. BERKELEY, QC:   If the Court pleases, I appear with my learned friend, MR G.T. PAGONE, for the applicant. (instructed by Australian Government Solicitor)

MR A.C. ARCHIBALD, QC:   If the Court pleases, I appear with my learned friend, MR C.M. SCERRI, for the respondents. (instructed by Arthur Robinson & Hedderwicks)

MASON CJ:   Yes.  Mr Berkeley.

MR BERKELEY:   Your Honours, looking at our outline of argument last night, I think that actually it said too much and too little. It says too much because the real ground of appeal here is, was the Full Court at liberty to reconsider a question of fact determined by the Tribunal? That raises for consideration the meaning of section 40 of the Administrative Appeals Tribunal Act.  If I could take Your Honours first to page 123 of the application book.  At paragraph 8 the Tribunal sets out all the companies that had an interest in these two leases - there were seven of them altogether - and then on the next page, at paragraph 9, the Tribunal says:

Of these, only Ampol Exploration Ltd Norcen International Ltd and Peko Oil Ltd are parties to the application for a combination certificate for Skua.

Now our submission is that that is a decision of fact.  Apparently the Full Court and certainly in the submission of the respondents - I am not sure whether they deal with a question of law or not, but I will read the rest of the paragraph:

By an oversight, BHPP (Cartier) was omitted.

And may I say something about that word “oversight”.  It is completely ambiguous.  I mean, it did not become clear whether it meant that nobody adverted to the question or did it mean that they adverted to the question but misconstrued the law?  It was not gone into, because once it was conceded, as it was conceded, that Cartier was not a party to the application, the reasons why it was not a party was not of any concern to the Minister; the fact was, it was not a party.

The consequence of the omission -

and that is the conclusion of law -

is that the named applicants have an interest in Jabiru/Challis of something less than 30%.  The applicants concede that, in these circumstances, the application to the Minister was invalid.

Now, that finding of fact by the tribunal, if it matters, was amply justified by the statements made by counsel for the company, before the Tribunal.

BRENNAN J:   But is that correct?  I mean, was it invalid or was it quite valid that the Minister had a direction not to grant ‑ ‑ ‑

MR BERKELEY:   I am sorry, Your Honour.  I have expressed myself too elliptically.  The finding of fact in the first two lines was one that was amply justified by the way in which the case was conducted in the court below, that is to say, when the point was raised - and, indeed, initially was over counsel for the company - they conceded that Cartier was not an applicant and, indeed, the whole argument went on in confession and avoidance.  That is, the company’s argument was this, “Notwithstanding that Cartier is not an applicant, the Minister still had power to deal with it of his own motion and therefore the Tribunal should deal with it of its own motion”, and that is quite apparent when one looks at what is said at the bottom of page 125.  If I could go to the first paragraph at the top of page 125:

However, Mr Robson submitted for the applicants that the Minister has an alternative power to issue a combination certificate which is not affected by the above 90 day limitation.

And then paragraph 15, at the bottom of the page:

Mr Robson did not dispute this limitation on the Tribunal’s jurisdiction but submitted that the Minister’s refusal to issue a certificate was, in fact, a refusal of an application (albeit an invalid one) under paragraph (b), which conferred the relevant jurisdiction on the Tribunal.

That is other powers which the Minister had.

So that argument which Mr Robson put was an argument in confession and avoidance.  That is, we concede that Cartier is not an applicant but the Minister did in fact deal with it invalidly and therefore the Tribunal has got power to deal with it.  Now, when it got to the Federal Court, the Federal Court proceeded to review that finding of fact, whether or not Cartier was an applicant, and the leading judgment was that of Justice Beaumont and his conclusion is expressed at page 199.  It starts a fair way back because the whole - there is the last passage starting from about page 195, where His Honour considers:

When you looked at the letter could you say it was from Cartier?

That is another way of saying, “Was Cartier one of the applicants?”  And, after considering that at some length on such of the evidence as was before the Federal Court, His Honour says, at line 35:

For these reasons, I am of the opinion that the application or request was “from” amongst others, BHPP (Cartier).

MASON CJ:   Well now, is not His Honour saying that the Tribunal misdirected itself in point of law?

MR BERKELEY:   Your Honour, it does not arise in that way.  What His Honour was asking was, in our submission, a question of fact, “Who was the application from?”  And he came to the conclusion it was not only from those who were named in the document, also from one other person - why should it not be from all the other people, I do not know - but it was from one other person that was not named in the document.  Of course, there is a flaw in the way His Honour approach it which is perhaps not really relevant; that is, the Act says, on the application of 50 per cent of those interested the Minister can consider an application.  It is phased in that way because it is not necessarily in the common interests of all the leaseholders to make this application because some of them may be interested in an adjoining lease and some of them may be interested in some other adjoining lease, and whether you join two projects together or not, may be for the benefit of some parties and not for the benefit of other parties.  But the difficulty by the way Mr Justice Beaumont approached it was, that on his argument, everybody would have made the application, and we know that is not so.

MASON CJ:   But it may be.  I mean, his argument might be right or wrong, but what he was saying was, “The Tribunal seems to have read the provision as if it referred to an application by.  Therefore, the omission of X from the relevant document meant that it was not an application by X and others.”  But, His Honour went on to say, “We take a different view of section 20(4); it does not say ’by’, it says ‘from’.  So you must conduct an inquiry to see where it proceeds from.”

MR BERKELEY:   Your Honour, the fact is the Tribunal never approached it in that way because the matter was never investigated.  The fact is when the matter was raised the company said, “Yes, that is right, Cartier is not an applicant, and as a consequence” - they in fact made two concessions:  one, “Cartier is not an applicant and, as a consequence, the application is invalid, but you, the Tribunal, can still deal with it.”  Now, in effect, the Tribunal accepted that concession and made the finding, “There are only three applicants.”  They did not go into the distinction between why or from or the proper construction of section 20(4); that matter was conceded.

Now, when the appeal came before the Federal Court, a different argument was put; an argument that was never put to the Tribunal, which is that Cartier is an applicant and you can see that if you look at all the other correspondents.

BRENNAN J:   I can understand all of what you are saying but the new argument was put before the Federal Court and the Federal Court accepted the new argument.

MR BERKELEY:   Yes, Your Honour.

BRENNAN J:   Now, to say the Federal Court should not have accepted the new argument, is a very powerful proposition, but it is not a special leave proposition, and having accepted the proposition, the Federal Court then approached it as a question of law.  But the real problem that you have got is that the Federal Court should have tossed it out lock, stock and barrel; is that not right?

MR BERKELEY:   That would have been lovely, yes.

BRENNAN J:   But it is not a special leave problem, is it?

MR BERKELEY:   Your Honour, I accept everything Your Honour say except one point and it is this: that section 44 of the Administrative Appeals Tribunal says that a party may appeal on a question of law.  Now, if I am wrong about this, that is the end of our application.  Our point is this, that the Federal Court may have - in fact, they do not say that this question is a question of law.  What they say is, whether the application is invalid or not is a question of law.  But the invalidity of the application or the validity of it, depends on an underlying question of fact and that is, “Was Cartier an applicant?”, or, as the Federal Court put the question of fact, “Was this an application from Cartier?”  Now, the whole question is, I mean, it is a matter of assertion; that is why I said to my learned junior, “I have no idea what I am going to say”, because it is not really a matter capable of much elaboration.  Once one gets down to this, that is ‑ we would say, when you are considering that, you have to take - before you can approach the question of law, you have to answer questions of fact, and that is, “Who were the people that were making this application?” 

If one looks at these five pages of Mr Justice Beaumont’s decision, in our submission, he is obviously approaching it as a question of fact; he has to.  That is, “What can you not do in relation to this application?  What was done on behalf of Cartier, in relation to this application?”  And then having decided that question of fact, he then says, “And it follows from that, the application was from Cartier.”

But what Mr Justice Beaumont was doing was making a finding of fact which was contrary to the finding of fact made by the Tribunal. That, we say, may be a special leave point because it raises for construction the powers of the Federal Court under Section 40 of the Administrative Appeals Tribunal Act, and that is a matter of general application.

BRENNAN J:   It does not really, does it?  I mean, there is no doubt about what it means.

MR BERKELEY:   Of what means, Your Honour?

BRENNAN J: What section 40 means.

MR BERKELEY:   Well there is no doubt to me, Your Honour, and there is no doubt to Your Honour, but we are talking about the Federal Court.

BRENNAN J:   No, no, what you are concerned about is not the construction of the section; it is the application of it, and your concern is that the Federal Court really did not pay any attention to the limitation on their jurisdiction.

MR BERKELEY:   That may be, Your Honour, but the difficulty is that if this decision stands, if one looks at it, it is authority for the proposition that the Federal Court may make findings of fact.  It is there.

MASON CJ:   No one could treat it as authority for that, having regard to the terms of the statute.

MR BERKELEY:   I understand that, Your Honour.  I mean, we would have thought, with respect, the terms.....and it may be that all this is authority for is that the decision was made per curium, but it ‑ ‑ ‑

DAWSON J:   Well, your best point is to say that we should grant special leave to ensure regularity in the court below.

MR BERKELEY:    That is one thing, Your Honour, and there is another point, with respect, that the way they approached it in fact did work an injustice as far as the Minister was concerned because the Federal Court embarked upon the consideration of a question of fact which we had no opportunity to investigate before the

Tribunal.  If the Court pleases.

MASON CJ:   The Court need not trouble you, Mr Archibald.

Section 44 of the Administrative Appeals Tribunal Act makes it perfectly clear that the jurisdiction of the Federal Court depends on the existence of a question of law.  Having read the judgments of the Federal Court, we have come to the conclusion that they say nothing which throws any doubt on that essential requirement of the court’s jurisdiction.  The application for special leave to appeal is therefore refused.

MR ARCHIBALD:   We ask for an order for costs, if the Court pleases.

MASON CJ:   You do not oppose costs, Mr Berkeley?

MR BERKELEY:   No.

MASON CJ:   The application is refused with costs.

AT 11.55 AM THE MATTER WAS ADJOURNED SINE DIE