Mt Wills Gold Mines Pty Limited v Minister for Resources
[2022] VSC 312
•14 June 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 00077
| MT WILLS GOLD MINES PTY LIMITED (ACN 009 223 992) | Plaintiff |
| v | |
| THE HONORABLE MINISTER FOR RESOURCES (and others according to the Schedule attached) | Defendants |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 May 2022 |
DATE OF JUDGMENT: | 14 June 2022 |
CASE MAY BE CITED AS: | Mt Wills Gold Mines Pty Limited v Minister for Resources |
MEDIUM NEUTRAL CITATION: | [2022] VSC 312 |
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JUDICIAL REVIEW – Application for exploration licence – Variation of existing licence – Approval of variation to existing licence after application for other exploration licence given highest ranking – Application for exploration licence refused – Whether decisions beyond Minister’s power – Effect of ranking – Procedural fairness – Decision made out of time – Jurisdiction of mining warden – Mineral Resources (Sustainable Development) Act 1990 (Vic) ss 4(1) (definition of ‘dispute’), 13, 15, 23, 24, 25(1)(d), 25(2), 34, 120, pt 12; Interpretation of Legislation Act 1984 (Vic) ss 42(1), 42A(1)(c).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Billings | Hope Earle |
| For the First Defendant | Mr P Willis SC | Minter Ellison |
| For the Third and Fourth Defendants | Mr S Burt | Williams Winter |
| The Sixth Defendant did not appear |
HIS HONOUR:
Introduction
Mt Wills Gold Mines Pty Limited (ACN 009 223 992) seeks judicial review under ord 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), and other relief, relating to decisions of the Minister for Resources by her delegate, Paul McDonald, on 30 October 2020 under the Mineral Resources (Sustainable Development) Act 1990 (Vic) (‘Act’):
(a) to vary an existing exploration licence (EL5518) to incorporate within it an area formerly subject to a mining licence (MIN5335) (‘Area 1’); and
(b) to refuse the plaintiff’s application for an exploration licence (EL006728) for Area 1.
The plaintiff also seeks a declaration that Edward de Zilwa, a mining warden and the sixth defendant, had jurisdiction under pt 11 of the Act to hear a dispute between the plaintiff and the Minister’s delegate.
Factual background
The historic Cassilis Gold Mine is located about 16km south of Omeo, and was once a flourishing gold mine. Access to the underground workings, which extend across two adjoining areas, is possible through Snake Adit, located within Area 1, or through Shamrock Adit, located within the area of exploration licence EL5518 (‘Area 2’) which is held jointly by the third and fourth defendants, Hercules Mining Contractors Pty Ltd (ACN 109 459 118) and Starwest Pty Ltd (ACN 006 444 613) (collectively, ‘Hercules’).
In 2015, the previous holder of mining licence MIN5335 went into liquidation. On 19 July 2016, the liquidators disclaimed MIN5335 as onerous property under s 568 of the Corporations Act 2001 (Cth). The tenement reverted to the State and was extinguished.
In 2017, the predecessor of the Department of Jobs, Precincts and Regions (with its predecessors, the ‘Department’) retained Pitt and Sherry, geotechnical and mining consultants, to consider treatment approaches which might facilitate the separation of Areas 1 and 2. Pitt and Sherry’s report was dated 29 June 2017, and described options, risks and costs if separation of the two areas were to be achieved. Among other recommendations, high-pressure water bulkheads were needed to control water infiltration, with significant associated risks of flooding and bulkhead failure.
On 7 March 2018, Hercules lodged two applications concerning Area 1 with the Department. They were:
(a) application EL006726, seeking an exploration licence over Area 1; and
(b) a request for a variation of existing licence EL5518 to include Area 1.
On the same day, the plaintiff lodged application EL006728 with the Department for an exploration licence over Area 1.
By a letter dated 30 December 2019 which was provided to the plaintiff on 25 February 2020, the plaintiff was advised that Anthony Hurst, Executive Director of Earth Resources Regulation within the Department, being a delegate of the Minister, had ranked the plaintiff’s application as the highest ranking application of the two competing exploration licence applications.
Following public advertising of the plaintiff’s application, Hercules lodged an objection to the application on 16 March 2020.
In July 2020, WorkSafe prepared an issues paper regarding potential major mining risks and hazards if Area 1 were operated independently of Area 2.
On 4 August 2020, Mr Hurst wrote to the plaintiff to give notice that the plaintiff’s application may not adequately address the risks and hazards associated with the underground workings in Areas 1 and 2. The letter stated:
Having reviewed the matters raised by Worksafe, I have doubt about whether your application for EL006728 (in particular, your program of work) adequately addressed the risks associated with the underground workings at the site (including risks arising from inundation or inrush, loss of ventilation, air quality and tailings dams) and their potential consequences for the licensee of EL5518, their employees and contractors. These concerns may lead to a decision to refuse your application for the grant of an exploration licence.
The plaintiff responded to Mr Hurst’s letter by a written submission dated 18 August 2020. The key points in the Executive Summary included:
1.[The plaintiff] concurs with Worksafe Victoria’s findings regarding the risks associated with adjoining mining operations at Cassilis.
…
4.The fragmented nature of tenements in the Cassilis Mining Area is a significant barrier to … development and needs to be addressed.
The plaintiff’s submission stated:
[Earth Resources Regulation] and Worksafe Victoria both have acknowledged concerns in relation to scenarios involving adjoining mining operations. [The plaintiff] share in these concerns. The report prepared by Pitt and Sherry consultants for Earth Resources Regulation … in 2017 regarding the possibility of separating the working at Cassilis is accepted by [the plaintiff] as presenting technically possible options. However, [the plaintiff’s] view is that while it may be technically possible to separate the workings in a manner similar to option 5, described in the Pitt and Sherry Report this is unlikely to be practical, or realistic, at an operating level.
[The plaintiff’s] preferred resolution of this matter is for the mineral tenure over the Cassilis Gold Mine Project Area to be consolidated. This establishes the preconditions for this area to be incorporated in a project that has a realistic prospect of creating value …
[The plaintiff] is prepared, and expects, to negotiate with all parties in good faith to achieve the consolidation of the mineral tenure over the Cassilis Gold Mine Area.
Under the heading of ‘The Potential Hazards associated with Adjoining Mining Operations – the case for a single unencumbered tenure of the Cassilis Gold Mine Project Area’, the plaintiff’s submission stated:
[The plaintiff] agrees and accept the hazards identified for adjoining operations associated with the Cassilis Gold Mine Project Area. Further to this [the plaintiff] agrees they potentially create risks to future mining operations in the event activity recommences with independent ownership in one, or both, of adjoining workings at Cassilis; either exploration, mine development or production activities.
However, it is [the plaintiff’s] view that while it may be technically possible to separate the workings in a manner similar to option 5, described in the Pitt and Sherry Report this is unlikely to be practical, or realistic, at an operating level …
For the reasons outlined above, it is the view of the [plaintiff] that potential consequence arising from a scenario involving the potential for independent ownership of adjoining operations within the Cassilis Mine Project Area should be avoided …
The plaintiff stated that it would seek to ‘negotiate in good faith with all parties with current tenure interests connected with the Cassilis Mine Project Area with the aim [of] achieving necessarily required and appropriate access over the entire Cassilis Gold Mine Project Area’.
On 11 September 2020, the Department wrote to Hercules seeking comment on the WorkSafe issues paper and the Pitt and Sherry report. On 14 September 2020, Hercules responded to the Department, agreeing with the issues raised by WorkSafe.
On 26 October 2020, an internal departmental brief was issued to the Minister’s delegate recommending that the delegate vary licence EL5518 and refuse application EL006728.
The brief highlighted the significant risks associated with the underground workings if Area 1 were to be operated independently from Area 2. It discussed the Pitt and Sherry report and the WorkSafe issues paper. The brief also referred to a recommendation made on 28 February 2020 by the mining warden to the Minister highlighting the risks involved with separate operations in Areas 1 and 2.
Acting as the Minister’s delegate, Mr McDonald made the recommended decisions and signed correspondence on 30 October 2020. The plaintiff received a letter advising that application EL006728 had been refused.
Relevant statutory provisions
The statutory provisions dealing with applications for exploration licences are found in pt 2 div 2 of the Act. The provisions that relate to changes of existing licences are found in pt 2 div 7 of the Act.
Section 1 sets out the purpose of the Act as follows:
The purpose of this Act is to encourage mineral exploration and economically viable mining and extractive industries which make the best use of, and extract the value from, resources in a way that is compatible with the economic, social and environmental objectives of the State.
The objectives of the Act are found in s 2(1). They are relevantly:
(a) to encourage and facilitate exploration for minerals and foster the establishment and continuation of mining operations by providing for—
(i) an efficient and effective system for the granting of licences and other approvals; and
(ii) a process for co-ordinating applications for related approvals; and
(iii) an effective administrative structure for making decisions concerning the allocation of mineral resources for the benefit of the general public; and
(iv) an economically efficient system of royalties, rentals, fees and charges; and
(b) to establish a legal framework aimed at ensuring that—
(i) risks posed to the environment, to members of the public, or to land, property or infrastructure by work being done under a licence or extractive industry work authority are identified and are eliminated or minimised as far as reasonably practicable; and
(ii) consultation mechanisms are effective and appropriate access to information is provided; and
(iii) land which has been mined or from which stone has been extracted or removed is rehabilitated; and
(iv) just compensation is paid for the use of private land for exploration or mining; and
(v) conditions in licences and approvals are enforced; and
(vi) dispute resolution procedures are effective; and
…
Section 4(1) of the Act defines ‘dispute’ as follows:
dispute means a dispute arising under this Act between—
(a)a licensee or an applicant and the Department Head or an employee of the Department; or
(b) a licens ee or an applicant and the holder of a miner's right; or
(c) a licensee or an applicant and the owner or occupier of land; or
(d) a licensee and another licensee or an applicant for a licence; or
(e) an applicant and another applicant; or
(ea)a member of the public and the Department Head (or an employee of the Department) in relation to work under a licence that directly and substantially affects, or is likely to affect, the member of the public—
and includes a dispute—
(f)about the existence of a licence, miner's right or tourist fossicking authority; or
(g)about the boundaries of land covered by a licence or an application—
but does not include a dispute for which recourse to a court, a tribunal or an expert (other than a mining warden) is expressly provided under this Act;
Section 13 of the Act makes provision for exploration licences:
(1)The holder of an exploration licence is, subject to section 43(1), entitled to carry out exploration on the land covered by the licence.
(2)An exploration licence must describe the land by reference to graticular sections (whether whole or part), unless the Minister decides otherwise.
(3) An exploration licence—
(a)is current for the time specified in the licence (unless it is surrendered or cancelled earlier or unless this Act otherwise provides); and
(b)may be renewed in accordance with the provisions of this Part; and
(c)applies to the area, not less than 1 nor more than 500 graticular sections, specified in the licence, unless the Minister decides otherwise.
(4)In issuing an exploration licence, the Minister may specify on the licence that it is to remain current for a period of up to 5 years from the date on which it is registered.
…
Part 2 div 2 of the Act sets out the licence application process. Section 15 relevantly provides:
(1)A person may apply to the Minister in accordance with the regulations for an exploration licence, a mining licence, prospecting licence or retention licence.
(1A)An application for a licence is ineffective, and must not be accepted by the Minister, to the extent that it is for—
(a)a licence over land that is covered by a mining licence or that is the subject of an application for a mining licence; or
(b)an exploration licence over land that is covered by an exploration licence or that is the subject of an application for an exploration licence …
(3)If the Minister accepts an application, he or she must notify the applicant in writing that the application has been accepted, and must include in the notification—
(aa)if the application is not the only application that has been accepted, a statement that more than one application has been received and accepted and that the applications will be ranked in accordance with this Part; or
(a)if, because of section 23, the application has a lower ranking than another application, a statement that another application has a higher ranking; or
(b)in any other case, a statement that the application has the highest ranking.
…
(5)An applicant for a licence must, within 14 days after being notified under subsection (3)(b) or (4) that the application has the highest ranking, advertise the application in accordance with the regulations and, if the application is for a mining licence or a prospecting licence, give notice of it in accordance with the regulations to the owner and occupier of the land affected.
…
(6) An applicant for a licence must satisfy the Minister that the applicant—
(a) is a fit and proper person to hold the licence; and
(b) intends to comply with this Act; and
(ba) subject to subsection (6A), genuinely intends to do work; and
(c)subject to subsection (6A), has an appropriate program of work; and
(d)is likely to be able to finance the proposed work and rehabilitation of the land.
…
(7)An applicant for a licence must provide any additional information about the application that is requested in writing by the Minister, within 14 days after receipt of the request or any longer time allowed by the Minister.
(8)If the Minister asks for additional information about an application, the application lapses if—
(a)the information is not given to the Minister within the time required by subsection (7) …
Section 23 of the Act provides for the ranking of competing applications for a licence:
(1) If more than one application for a licence in respect of the same land is received on the same day, the Minister must rank those applications in accordance with this section.
(2) The Minister must give the highest ranking to the application that he or she believes will best further the objectives of this Act after considering—
(a) the relative merits of the applications; and
(b) the likely ability of each application to meet the requirements specified in section 15(6).
(3) Once an application has been given the highest ranking, any further assessment of the application must be made without regard to anything contained in applications having a lower ranking.
Sub-sections 24(1) and (2) of the Act provide for objections to be made to applications for licences:
(1) Any person may object to a licence being granted.
(2) A person who objects must—
(a) put the objection in writing; and
(b) include the grounds on which it is made; and
(c)send it to the Minister within 21 days after the latest date on which the application was advertised.
Section 25(1)(d) of the Act provides that the Minister must not grant a licence over land that is the subject of any other application that has not been determined and which has, because of s 23, a higher ranking.
Section 25(2) of the Act provides a time limit for decision making:
Otherwise, the Minister may grant or refuse a licence, after considering any objections made under section 24 and any comments made under section 24A—
(a)in the case of an exploration licence … within 90 days of the application being accepted in accordance with section 15 …
Section 34 is found in pt 2 div 7 of the Act, and provides:
(1)The Minister may after consultation with the licensee, by instrument served on the licensee, vary a licence, or vary, suspend or revoke a condition of a licence or add a new condition but the Minister cannot vary the period for which a mining licence has effect.
(2) The Minister may act under subsection (1)—
(a) at the request of the licensee; or
(ab)if the Minister decides it is necessary to eliminate or minimise the risks that the work may pose to the environment, to any member of the public, or to land, property or infrastructure in the vicinity of the work; or
(b)if the Minister decides it is necessary for the rehabilitation or stabilisation of the land to which the licence applies; or
(ba)if the Minister decides it is necessary to ensure that appropriate environmental offsets are provided for or implemented; or
(c)if the Minister decides it is necessary for the protection of a community facility; or
(ca)if the Minister decides it is necessary for the purpose of allowing access to and use of the land to which the licence applies by the holder of another licence that is limited to a particular stratum; or
(cb)if the Minister decides it is necessary because of any condition imposed on the approval of a work plan or of a variation of a work plan under section 40A or 41AAB; or
(d) in any other circumstances that are prescribed.
(2A)The Minister may also act under subsection (1) to make compliance with the Code of Practice a condition of—
(a) a mining licence that—
(i) covers an area of 5 hectares or less; and
(ii)does not involve underground operations, blasting, clearing of native vegetation or the use of chemical treatments; or
(b)a prospecting licence that does not involve underground operations, blasting, clearing of native vegetation or the use of chemical treatments.
(3)A variation of a licence or a variation, suspension, revocation or addition of a licence condition has no effect until the instrument by which it was done is registered.
The Minister’s power of delegation is found in s 120(1) of the Act, which provides:
The Minister may, by instrument, delegate to the Department Head or any employee in the Department any power of the Minister under this Act or the regulations, other than this power of delegation.
Evidence
The plaintiff relies on the affidavit and exhibits of Marino Sussich filed 15 January 2021. Mr Sussich is the chairman of the plaintiff’s board of directors. The Minister relies on the affidavit and exhibits of Anthony Hurst filed 25 June 2021. Hercules relies on the affidavit of Michael Proelss, its sole director, filed 6 August 2021.
Mr Hurst also gave oral evidence. He said that there were two applications for an exploration licence and a request for a variation of licence over the same land received by the Department on the same day. The Department assessed the two applications for an exploration licence with respect to the relevant provisions of the Act and an operational policy for the assessment of competing applications authorised by the Minister. The assessment process for competing licence applications involved reviewing the geological exploration team and methodologies which would be used, and the level of expenditure set out in the competing licence applications.
Mr Hurst said that the ranking of licence applications and the licence application process were separate from the process that related to the request to vary the existing licence. He said that the request for a variation was treated separately under s 34 of the Act. It was not weighted against the competing licence applications, and was not affected by the preferential status given to an exploration licence application.
Mr Hurst said that when a licence application was given a higher ranking, the lower ranked applicant was notified of the outcome of the ranking process. Further correspondence from the lower ranked applicant as to the lower ranked application and the ranking process was disregarded. There could be objections to the higher ranked application after it was advertised.
The parties’ positions
The plaintiff submitted that the decisions to vary licence EL5518 by including Area 1 under the licence, and to refuse the plaintiff’s application EL006728 over the same area, were beyond the Minister’s powers and should be judicially reviewed. The plaintiff also sought a declaration as to the mining warden’s jurisdiction. The plaintiff relied on five grounds.
The Minister and Hercules separately submitted that the decisions of the Minister’s delegate accorded with law and that there was no need for judicial review.
The mining warden adopted the position described in R v Australian Broadcasting Tribunal; Ex parte Hardiman,[1] and made written submissions as to the history and role of the office of mining warden.
[1](1980) 144 CLR 13, 35-6.
Principles of statutory construction
Before considering the parties’ submissions in detail, it is convenient to summarise the principles of statutory construction, which are well established. In Project Blue Sky Inc v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ said:
… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[2]
[2](1998) 194 CLR 355, 384 (‘Project Blue Sky’) (citations omitted).
The plurality of the High Court emphasised the importance of text, context and purpose in SZTAL v Minister for Immigration and Border Protection:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[3]
[3](2017) 262 CLR 362, 368 (Kiefel CJ, Nettle and Gordon JJ) (citations omitted).
In CIC Insurance Ltd v Bankstown Football Club Ltd, the majority of the High Court said:
… the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous.[4]
[4](1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (citations omitted).
Grounds (a), (b), and (d) – was the delegate’s decision beyond power?
It is convenient to consider grounds (a), (b) and (d) together, as they raise related legal issues. They may be briefly summarised as follows:
(a)Ground (a) – after application EL006728 had been given the highest ranking, the Minister’s delegate erred in law by having regard to matters contained in the other applications which had a lower ranking, contrary to s 23(3) of the Act;
(b)Ground (b) – when application EL006728 was given the highest ranking, the Minister’s delegate must have been satisfied under s 15(6)(c) of the Act that the plaintiff had an appropriate program of work. The delegate erred by refusing the application and also denied the plaintiff procedural fairness; and
(c)Ground (d) – the Minister’s delegate erred in refusing application EL006728 in breach of s 25(1)(d) of the Act.
Plaintiff’s submissions
The plaintiff submitted that:
(a)section 23(3) of the Act requires that once an application has been given the highest ranking, any further assessment of the application must be made without regard to a lower ranked application;
(b)section 15(6)(c) of the Act provides that the applicant for a licence must satisfy the Minister that the applicant has an appropriate program of work. It must be assumed that the applicant satisfied the Minister’s delegate of this requirement as it was advised that its application was the highest ranked;
(c)on a proper reading of s 40 of the Act, the obligation to specify risk in a program of work only arose after a licence was granted;
(d)section 25(1)(d) of the Act provides that the Minister must not grant a licence over land which is the subject of another application which has not been determined and has a higher ranking; and
(e)the Minister’s delegate acted contrary to s 25(1)(d).
Minister’s submissions
The Minister submitted that:
(a)there is nothing in s 23 of the Act which requires the Minister to grant the highest ranking application;
(b)the power to grant or refuse a licence under ss 25(2) and (3) of the Act is permissive and not mandatory;
(c)the Act provides for the Minister to take into account matters raised in objections or comments;
(d)the power to vary an existing licence under s 34 stands apart from s 23 and is not affected by it;
(e)there is no statutory requirement that an application under s 15 be determined prior to an application under s 34; and
(f)there was no failure to afford procedural fairness as the plaintiff was on notice of the issues which formed the basis for the refusal of the application and had the opportunity of submitting comments to the Minister’s delegate.
Hercules’ submissions
Hercules submitted that:
(a)it endorsed the submissions and position of the Minister;
(b)the plaintiff’s submission conflated two distinct legislative pathways which governed applications for an exploration licence and the variation of an existing licence; and
(c)the application to vary licence EL5518 was not a competing application with applications number EL006726 and EL006728.
Analysis
The key issue is whether a variation of an existing licence is subject to the provisions of pt 2 div 2 of the Act. This is determined in accordance with the principles of statutory construction, and involves consideration of the text, context and purpose of the relevant provisions.
Text and context
Textual and contextual considerations point strongly to the conclusion that the procedures set out in pt 2 div 2 of the Act do not apply to a licence variation:
(a)Part 2 of the Act consists of a series of divisions dealing with discrete subject matters, including the licence process (div 2), the licence process for direct allocation of licences relating to coal (div 3), land surveys (div 3A), agricultural land (div 4), licence tenders (div 5), licence renewals (div 6), changes to licences (div 7), licence surrender or cancellation (div 8), and the imposition of a mine stability levy for the Latrobe Valley (div 9). There is no indication in the Act that the provisions which apply to div 2 applications also apply to the provisions found in div 7.
(b)The subject matter of div 7 extends across the spectrum of possible licence changes and includes transfers, splits, variations, the combination of conditions and amalgamations of licences. The subject matter of div 7 is very different from that found in div 2.
(c)The provisions of div 2 operate individually and collectively as part of a scheme whereby applications for licences may be made and determined. Section 34 in div 7 is of an entirely different character, allowing the Minister to vary existing licences in accordance with the requirements of that section.
(d)Division 2 provides for the ranking of applications, public notice and objection processes. There are no similar or analogous processes in div 7.
(e)The relevant considerations which must be taken into account by the Minister under div 2 are different from those specified in div 7. The requirements which an applicant for a licence must satisfy are set out at length in div 2. By contrast, the Minister may, after consultation with the licensee, make a licence variation at the request of the licensee or on the Minister’s own motion, addressing the different considerations listed in ss 34(2) and (2A).
(f)Division 2 speaks of the making of an ‘application’ for a licence by the ‘applicant’ and of the ‘grant’ or ‘refusal’ of a licence by the Minister. Section 34 does not use this terminology at all. It authorises the Minister to act as the moving party, or at the ‘request’ of the licensee. It does not use the terms ‘applicant’ or ‘application’.
(g)The identity of the moving party in each division differs. Division 2 is solely concerned with applicants who seek a licence. They are the moving parties. Under s 34, the Minister is the moving party and must consult with the licensee.
Purpose
Consideration of purpose also points strongly towards the same construction. The purpose of pt 2 div 2 is to establish procedures for the determination of new licence applications. The purpose of pt 2 div 7 is to make provision for changes to existing licences and, in the case of s 34, for the variation of existing licences. The substantive differences between the respective provisions are to be expected because of the different position of applicants for licences from that of existing licensees. Existing licensees have previously complied with the procedures of pt 2 div 2. They are tenement holders with established rights.
The ranking process exists to resolve the contest between competing applicants who apply on the same day in relation to the same area. It has no relevance to changes in existing tenements such as licence transfers, amalgamations, variations, splits, or condition changes. Different procedures inevitably apply for the Minister if seeking to change a licence holder’s rights in an existing tenement.
Priority between applications and variations
I accept the submission by the Minister and Hercules that the power to vary an existing licence under s 34 of the Act is not subject to the requirements of pt 2 div 2 of the Act. There is no ranking procedure which applies to variations under s 34. There was no breach by the Minister’s delegate of ss 23(3) and 25(1)(d) of the Act because these provisions did not apply to a variation under s 34. There is no statutory requirement as to the order in which an application for an exploration licence and a variation of an existing licence relating to the same area must be considered. The Minister’s delegate did not act beyond power when he made a variation to EL5518 and refused application EL006728.
The Minister’s powers
Section 25 of the Act deals with the grant or refusal of a licence application. The effect of ss 25(2) and (3) is clear and unambiguous. Section 25(2) provides that the Minister ‘may grant or refuse a licence’ after considering objections and comments within a specified timeframe. Section 25(3) again provides that the Minister ‘may grant’ a licence if the applicant has substantially complied with the Act and the regulations. It also provides that the Minister ‘may refuse to grant a licence even though the applicant has complied with the Act and the regulations’.
Under s 45 of the Interpretation of Legislation Act 1984 (Vic), where the word ‘may’ is used in conferring a power, the word shall be construed as meaning that the power so conferred may be exercised, or not, at discretion. The word ‘may’ is used in ss 25(2) and (3) in conferring a power with the result that these provisions should be construed as conferring a power which may be exercised, or not, at the Minister’s discretion.
I accept the submission of the Minister and Hercules that there is nothing in the Act which suggests that the grant of a licence is mandatory where an application has been given the highest ranking under s 23(2).
Procedural fairness
On 4 August 2020, the Department wrote to the plaintiff and gave notice of its concern that application EL006728 did not adequately address the risks associated with the underground workings at the site. The letter referred to WorkSafe’s concerns about hazards at the mine site, and advised that these concerns may lead to a refusal of the plaintiff’s application for the grant of an exploration licence. The letter invited the plaintiff to provide any further information and documents in support of its application within 14 days, and provided copies of the WorkSafe issues paper and Pitt and Sherry report.
On 31 August 2020, the plaintiff responded. I have already set out significant paragraphs from the plaintiff’s response.[5]
[5]See paragraphs [12]–[15] above.
I am satisfied that the Department did advise the plaintiff of its concerns, providing the plaintiff with the WorkSafe issues paper and the Pitt and Sherry report. The plaintiff responded outside the 14 day timeframe, but the Department did not express any concern about this. The plaintiff was given a reasonable opportunity to respond to the Department’s concerns, and it did so. The Minister’s delegate complied with the obligation to render procedural fairness to the plaintiff, and ensured that the plaintiff was alert to the Department’s concerns. The Minister’s delegate complied with the requirements of procedural fairness when he made the decision to refuse the plaintiff’s application.
Conclusion
In varying licence EL5518, and in refusing to grant application EL006728, the Minister’s delegate and the Department acted in accordance with the Act and the duty to render procedural fairness. Accordingly, grounds (a), (b) and (d) fail.
Ground (c) – was the delegate’s refusal of application EL006728 invalid and of no effect because it did not occur within 90 days of the acceptance of the application?
By letter dated 23 April 2018, the Department acknowledged receipt of the plaintiff’s application. The Department subsequently required further information, which was supplied. The plaintiff advertised its application in March 2020. The Minister’s delegate refused the plaintiff’s application on 30 October 2020.
The plaintiff submits that the refusal decision was in error and vitiated, because it was made more than 90 days after acceptance of the application, contrary to s 25(2)(a) of the Act. The Minister and Hercules submit that the refusal decision was valid, even if late.
The consequence of non-compliance with a statutory requirement in exercising a power was considered by the High Court in Project Blue Sky. Brennan CJ referred to statutory provisions which prescribe conditions on the availability for exercise of a statutory power. His Honour also referred to provisions which require the repository of a power or some other person to do or to refrain from doing something (sometimes within a period prescribed by the statute) before the power is exercised, but where non-compliance with the provision does not invalidate a purported exercise of the power.[6] In the same decision, the majority held that the test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. In determining the question of purpose, regard must be had to the relevant statutory provision and the scope and object of the whole statute.[7]
[6]Project Blue Sky (n 2), 373–4.
[7]Ibid, 390–1 (McHugh, Gummow, Kirby and Hayne JJ).
The application of this test in the present case gives a clear result. If the effect of non-compliance with s 25(2)(a) as a result of delay by the Minister were to deny the Minister the power to decide the application, the statutory process would be stultified. An applicant for a licence would find that the application, through no fault of the applicant, could not be granted or refused. The only option would be to submit a fresh application and start again at considerable cost and even more delay. This would be a most inconvenient and unsatisfactory result. The plaintiff’s submission, if correct, would have the effect that the Minister could neither grant nor refuse an application where the 90 day period had been exceeded. It is plain that such an absurd outcome could not have been intended by the legislature.
The purpose of s 25(2)(a) is to assist applicants to obtain an expeditious result by requiring the Minister to make a decision within a specified time limit. It is obvious that Parliament did not intend that an application would be stifled and rendered nugatory if the time limit were not met. It is not a purpose of the legislation that a breach of s 25(2)(a) by the Minister in failing to decide an application within 90 days should render the application nugatory and any decision made invalid. There is nothing in the Act which suggests otherwise.
A further difficulty for the plaintiff is that non-compliance with s 25(2)(a) would only affect the plaintiff’s own application, EL006728. It would not affect the variation of licence EL5518, which would continue to be lawful and effective.
Ground (c) fails.
Ground (e) – was the dispute within the jurisdiction of the mining warden?
The plaintiff submitted that the mining warden refused to exercise his jurisdiction to hear the dispute under pt 11 of the Act. The Minister and Hercules submitted that the mining warden did not have jurisdiction to determine the dispute.
The office of mining warden
The history of the office of mining warden was outlined by the Court of Appeal in the decision of Swindells v Victoria.[8] Section 97(1) of the Act provides that a party to a dispute, as defined in s 4, may refer the dispute to a mining warden. Section 97(2) provides that the mining warden must investigate the dispute, attempt to settle, or arbitrate in relation to, the matters in dispute and, where appropriate, make recommendations to the Minister concerning those matters. A mining warden has various powers, including to conduct a hearing, to enter and inspect land, and to require an employee of the Department to produce records or other documents held by the Department and to give information or assistance which the mining warden requests.[9] A mining warden must discontinue the investigation of a dispute or other matter if the dispute or other matter is the subject of proceedings before a court or tribunal.[10]
[8][2016] VSCA 9, [7]–[8]; see also Swindells v Victoria [2015] VSC 19, [11]–[29] (Macaulay J).
[9]Act s 99.
[10]Ibid s 103(b).
The function of a mining warden is conciliatory and not adjudicative in nature. It was described by Macaulay J in Swindells v Victoria as a ‘hybrid’, encompassing dispute resolution, administrative review, regulatory, investigative and advisory functions.[11]
[11][2015] VSC 19, [28].
Power to delegate
The Minister’s power to delegate is found in s 120 of the Act. Under s 120(1), the Minister may, by instrument, delegate to the Department Head or any employee in the Department any power of the Minister under the Act other than the power of delegation. In the present case, it was Mr McDonald, acting as the Minister’s delegate, who made the decision to grant the variation of licence EL5518 and to refuse the plaintiff’s application. The plaintiff did not submit that the Minister could not delegate the making of the disputed decisions or that the delegation to Mr McDonald was invalid or ineffective for any reason.
Section 42(1) of the Interpretation of Legislation Act 1984 (Vic) provides:
Where the discharge, exercise or performance by a person of a responsibility, power, authority, duty or function under an Act or subordinate instrument is dependent upon the opinion, belief or state of mind of that person in relation to a matter and the responsibility, power, authority, duty or function is, in accordance with the Act or subordinate instrument, delegated, the delegate may, unless the contrary intention appears, discharge, exercise or perform the responsibility, power, authority, duty or function upon the delegate’s own opinion, belief or state of mind (as the case requires) in relation to that matter.
The consequence of s 42(1) is that a delegate may exercise the power or perform the responsibility of the Minister acting upon his or her own opinion, belief and state of mind.
Is there a dispute?
Section 4 of the Act defines ‘dispute’ to include a dispute arising under the Act between an applicant and an employee of the Department. Although he was acting as the Minister’s delegate when he made the disputed decisions, Mr McDonald is also an employee of the Department.
The plaintiff submitted that this meant that the mining warden had jurisdiction to hear and determine its claims against the Minister. The Minister and Hercules contended that this was incorrect and involved an erroneous construction of the definition of ‘dispute’.
There is no doubt that the plaintiff’s complaint is against the Minister, who acted through Mr McDonald as her delegate. Each of the decisions under challenge was a decision of the Minister.[12]
[12]Interpretation of Legislation Act 1984 (Vic) s 42A(1)(c).
The principles of statutory construction again assist in determining this issue. The text and context of the definition of ‘dispute’ point strongly against the plaintiff’s proposed construction. Disputes between a licence applicant and the Minister are not within any of the categories listed in the definition of ‘dispute’ in s 4 of the Act.
The purpose of pt 11 of the Act is to confer jurisdiction upon and establish procedures for the office of mining warden. There is no indication that the purpose extended to the resolution of disputes regarding decisions made by or on behalf of the Minister. The resolution of disputes of this type is by way of judicial review in the original jurisdiction of this Court or under the Administrative Law Act 1978 (Vic). It is highly unlikely that Parliament intended that a mining warden’s jurisdiction would intrude into the area of judicial review of ministerial decisions.
The plaintiff’s construction would have the anomalous consequence that decisions made by the Minister personally would not be part of a mining warden’s jurisdiction, but decisions made by a delegate of the Minister who was a departmental employee would be subject to that jurisdiction. This would mean that the jurisdiction of a mining warden would turn on whether the Minister made and signed off on a decision personally, or left the decision to be made by a delegate.
There are clear indications in pt 11 that the jurisdiction of the mining warden is not intended to be enlivened in circumstances where the dispute is between a licence applicant and the Minister acting through a delegate:
(a)the Minister has the power to refer a matter to a mining warden for investigation.[13] There would be a conflict of roles if the Minister were responsible for referral and also a party to the dispute because the decision was made by a delegate;
(b)a mining warden relevantly only has power to make recommendations to the Minister concerning a matter in dispute.[14] There is no power given to a mining warden to make orders binding on the Minister or to undo or require the Minister to reconsider decisions; and
(c)section 99(1)(e) of the Act gives a mining warden the power to require an employee of the Department to produce any record or other document in the custody, possession or control of the Department and give any other information or assistance that the mining warden requests and the employee is able to give. The power to make such an order is a good guide to the Parliament’s intention. The nature of this power suggests that the jurisdiction of a mining warden in relation to departmental employees is in their capacity as employees, and not in any other capacity.
[13]Act s 98.
[14]Ibid s 97(2).
Conclusion – Ground (e)
I am satisfied that the jurisdiction of a mining warden under pt 11 of the Act does not extend to decisions of the Minister, whether made personally or by a delegate. The reference to an ‘employee’ in the definition of ‘dispute’ in s 4 does not mean that the office of mining warden has jurisdiction to determine disputes about the refusal of a licence application between an applicant and the Minister whether acting personally or by a delegate. Such disputes are appropriately determined in this Court.
Ground (e) fails.
Conclusion
For the reasons set out above, all of the plaintiff’s grounds and its application for judicial review fail. The proceeding must be dismissed.
SCHEDULE OF PARTIES
| MT WILLS GOLD MINES PTY LIMITED (ACN 009 223 992) | Plaintiff |
| - and - | |
| THE HONORABLE MINISTER FOR RESOURCES | First Defendant |
| HERCULES MINING CONTRACTORS PTY LTD (ACN 109 459 118) | Third Defendant |
| STARWEST PTY LTD (ACN 006 444 613) | Fourth Defendant |
| MINING WARDEN VICTORIA | Sixth Defendant |
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