Ocsalt Pty Ltd v Minister for Mineral Resources and Energy
[2012] SASC 166
•20 September 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
OCSALT PTY LTD v MINISTER FOR MINERAL RESOURCES AND ENERGY & ANOR
[2012] SASC 166
Judgment of The Honourable Justice Nicholson
20 September 2012
STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - CONSTRUCTION
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - MANDAMUS - GENERALLY
MINING LAW
The plaintiff is the holder of several mining leases, each subject to the provisions of the Mining Act 1971 (the Act). The first defendant, the Minister for Mines and Energy (the Minister) with the assistance of delegates, including the second defendant, the Director of Mines (the Director) is responsible for the administration of the Act. The plaintiff applied, pursuant to ss79(1)(a) of the Act, for an exemption from its obligation to comply with the working conditions in respect of each lease for a period of five years. The exemptions were sought in respect of a period prior to and after the date of the application. The Minister granted the plaintiff exemptions in respect of all the leases to commence on the date of the determination itself and with no retrospective operation. The plaintiff sought a review of this determination arguing that the Minister acted on an incorrect construction of the discretionary power conferred by s79 of the Act and that the Minister has power to grant exemptions with retrospective effect. The determination was reviewed. The Minister maintained that he had no power under the Act to grant an exemption with retrospective operation. The plaintiff sought declaratory relief and judicial review of the Minister’s determination.
Whether the Minister misapprehended the scope of his discretionary power under s79 of the Act – whether ss79(2) of the Act permits an exemption to be granted with retrospective operation – whether the plaintiff is entitled to judicial review and an order in the nature of mandamus.
Held – s79 of the Act does not indicate a legislative intention to restrict the ambit of the Minister’s discretion in the manner asserted by the Minister – the Minister relied on an incorrect construction of the discretionary power conferred by s79 of the Act – ss79(2) of the Act authorises the Minister to grant an exemption with retrospective operation – the plaintiff is entitled to declaratory relief and to judicial review - the parties are to be heard further as to whether an order in the nature of mandamus is necessary or appropriate and as to the form of orders generally.
Mining Act 1971 (SA) s1, s2, s12, s34, s35, s38, s39, s41, s69, s70, s79, s92; Mining Regulations 1998 Regulation 50, Regulation 52; Acts Interpretation Act 1915 (SA) s22; Say what you mean! A troubleshooter’s guide to English style and usage RL Trask, David R Godine, 2005; The King’s English 2nd ed, HW Fowler, 1908, chapter 2; Statutory Interpretation in Australia 7th ed, DC Pearce and RS Geddes, LexisNexis, Butterworths Australia, 2011 at [10.8], referred to.
Taylor & Schultz v Nth Flinders Mines (1977) 76 LSJS 225; Giannarelli v Amatek Ltd [1997] SAWC 1; Southern Titanium & NL v Heidrich & Ors [2004] SAWC 1; P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366; Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd (2007) 158 FCR 325; Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; The Shire President, Councillors and Ratepayers of the Shire of Swan Hill v Bradbury (1937) 56 CLR 746; Water Conservation & Irrigation Commission (NSW) v Browning (1947) 74 CLR 492; Oshlack v Richmond River Council (1998) 193 CLR 72; R v P, NJ (No 4) (2008) 183 A Crim R 461; Fisher v Hebburn Ltd (1960) 105 CLR 188; Beard v South Australia (1991) 57 SASR 65; Kouflidis & Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321; Kalomel Nominees Pty Ltd v Commissioner of State Taxation [2012] SASC 10; Re Brighton RV Syndication Pty Ltd v Australian Securities & Investments Commission [2007] AATA 1305; Maxwell v Murphy (1957) 96 CLR 261; Attorney-General of New South Wales v World Best Holdings Ltd and Ors (2005) 63 NSWLR 557; Port of Portland Pty Ltd v Victoria (2010) 242 CLR 348; Kekes v Police; Kekes v Registrar of Motor Vehicles (2009) 106 SASR 451; War Pensions Entitlement Appeal Tribunal & Anor; Ex parte Bott (1933) 50 CLR 228, considered.
OCSALT PTY LTD v MINISTER FOR MINERAL RESOURCES AND ENERGY & ANOR
[2012] SASC 166Civil
NICHOLSON J.
Introduction
The plaintiff, Ocsalt Pty Ltd (Ocsalt) is a salt miner and is the holder of mining leases numbered 7, 18, 54, 55 and 224 located at Lochiel; 56 located at Snowtown; and 619, 690, 691 and 4782 located at Warooka (the leases). Each of the leases is subject to the provisions of the Mining Act 1971 (the Act). By virtue of the lease terms and the provisions of the Act, Ocsalt is obliged to observe various work covenants or working conditions. In effect, and unless exempted, Ocsalt is obliged to undertake certain salt mining related activities throughout the period of each lease.
The first defendant, the Minister for Mines and Energy (the Minister) with the assistance of delegates, including the second defendant, the Director of Mines (the Director) is responsible for the administration of the Act.[1]
[1] By s12 of the Act, the Minister may delegate any power or function vested in or conferred on the Minister under the Act and the Director may with the Minister’s consent delegate any power or function (including a delegated power or function) vested in or conferred on the Director under the Act.
By letter dated 9 September 2010, an application was made on behalf of Ocsalt[2] pursuant to s79 of the Act for an exemption from its obligations to comply with certain working conditions. On 31 October 2011 the Director, as delegate of the Minister, granted an exemption, but on terms that were not satisfactory to, nor as sought by, Ocsalt. In essence, Ocsalt complains that the Minister acted in reliance on an incorrect construction of the discretionary power conferred by s79 and wrongly refused to consider granting the exemptions with retrospective effect. In these proceedings Ocsalt has sought declaratory relief and judicial review of the Minister’s determination.
[2] Exhibit P2, Tender Book (TB) at tab 3. The application initially was made by Cheetham Salt Ltd of which Ocsalt is a wholly owned subsidiary and, thereafter, was pursued on Ocsalt’s behalf by its solicitors. In the letter of 9 September 2010 there is no reference to lease 691. However, by letter dated 15 October 2010, Ocsalt included this lease, as well, in the application (see TB at tab 4, p8).
It is common ground between the parties that a fundamental purpose of the scheme for regulating exploration and mining in this State, as provided for in the Act, is to encourage mining activity and to ensure that exploration and mining entitlements are not allowed to lie idle. Exploration and mining rights are to be exploited efficiently for the general economic benefit of the State.[3] Various features of the Act, designed to support or promote these goals, include:
(i)the forfeiture provisions, s69 and s70;
(ii)the requirement imposed by ss35(3) that the Minister is to be satisfied before granting a lease that there is a reasonable prospect that the land in question could be effectively and efficiently mined;
(iii)the measure of security of tenure for lease holders who comply with their obligations provided for by s38 which, it is expected, will encourage investment of resources; and
(iv)the power provided in ss92(1)(f) for the making of regulations directed at ensuring the diligent working of a mining tenement.
[3] See generally, Taylor & Schultz v Nth Flinders Mines (1977) 76 LSJS 225 at 233; Giannarelli v Amatek Ltd [1997] SAWC 1 at [22]; and Southern Titanium & NL v Heidrich & Ors [2004] SAWC 1.
The consequences of any failure by a mining lease holder to observe a condition of the lease or a provision of the Act can be severe.
(i)The Minister, of his own motion, may suspend or cancel a mining lease if the lessee contravenes or fails to comply with a term or condition of the lease or a provision of the Act.[4]
(ii)The Warden’s Court may, upon application by certain persons, make a finding that a lease under the Act is liable for forfeiture and recommend to the Minister that the lease be forfeited, where the Warden’s Court is satisfied that the requirements of the Act, in relation to the lease, have not been complied with in a material particular and that the matter is of sufficient gravity to justify forfeiture.[5]
(iii)In circumstances where the Warden’s Court recommends forfeiture of a lease and the Minister proceeds to forfeit the lease to the Crown, the person on whose application the Warden’s Court made the recommendation of forfeiture is entitled to a transfer of the lease from the Crown for the balance of its term.[6]
(iv)A holder of a mining lease has an almost unfettered right of renewal at the expiration of its term provided that the holder has complied with the provisions of the Act and the terms and conditions of the lease during its term.[7] The entitlement to renew is of potentially significant value. A mining lease can be granted for a period of up to 21 years.[8] It would seem that, upon exercise of the right of renewal, the lease holder will receive a new lease for a term, at the Minister’s discretion, up to 21 years, and that there is no express limitation on the number of times the lease might be renewed.[9] The policy of the Act is to provide relatively secure tenure so as to encourage mining activity and the consequential significant investment that would become necessary. However, a failure to comply with obligations under the lease or the Act can lead to a loss of this statutory right of renewal with significantly penal financial consequences.
(v)A failure to comply with a condition of a mining lease is punishable by a fine of up to $120,000.[10]
[4] Sub-section 41(1).
[5] Sub-sections 70(1) and (2).
[6] Sub-section 70(3).
[7] Section 38.
[8] Sub-section 38(1).
[9] Sub-section 38(2).
[10] Sub-section 34(13).
Nevertheless, it is also recognised by this legislative scheme that there will be times during the life of an exploration or mining tenure when active working or exploration of the entitlement is not practicable or appropriate on economic efficiency or other grounds. This, and the need to ameliorate the apparent severity of forfeiture and other provisions in the Act which might have a severe penal effect on a lease holder who has invested heavily, is recognised by a discretionary power in the Minister to exempt a lease holder from its obligations under the lease or the Act.[11]
[11] Section 79.
Pursuant to s79 of the Act, the Minister has a discretion to exempt the holder of a lease under the Act from the obligation to comply with a condition of that lease and to exempt the holder of a mining tenement from the obligation to comply with a provision of the Act (except Part 9B of the Act[12]). Ordinarily, in the event that such an exemption were to be granted, the beneficiary of the exemption would not be exposed to the consequences that would follow, in accordance with the terms of the Act, from a failure to comply with an obligation embraced by the exemption.
[12] Part 9B deals with native title land and is of no relevance to the present matter.
History and background to the application for judicial review
On 13 July 2004, Ocsalt applied, pursuant to ss79(1)(a) of the Act, for exemptions from the working conditions in respect of the leases for a period of five years.[13] An exemption with respect to each lease was granted on 10 August 2004 to “remain in force for a period of five years from 1 January 2004 to 31 December 2009”.[14] The exemptions granted on this occasion were given the retrospective operation as sought in Ocsalt’s application.
[13] TB at tab 1.
[14] TB at tab 2.
The exemptions granted in 2004 expired on 31 December 2009. However, it was not until 9 September 2010 that Ocsalt applied, again pursuant to ss79(1)(a) of the Act, for further exemptions from its obligation to comply with the working conditions in respect of each lease for a further period of five years.[15]
[15] TB at tab 3.
Notwithstanding that the application for further exemptions was not made until 9 September 2010, Ocsalt’s application was for any further exemptions to commence on the expiration of the previous exemptions, that is, 31 December 2009.[16] On 31 October 2011 the Minister, through his delegate, granted Ocsalt exemptions from the working conditions in respect of all of the leases, upon conditions, and for a period of two years but commencing on 31 October 2011, that is, the date of the determination itself.[17] On 21 November 2011 Ocsalt, through its solicitors, sought from the delegate a review of this determination with respect to a number of matters but, in particular, as to the commencement date. Ocsalt wished to avoid any hiatus between the expiration of the previously granted exemptions and the commencement of the new exemptions. It put a number of arguments to the delegate to the effect that if, in all other respects, exemptions with respect to this hiatus period were justified, the Minister had power under the legislation to grant exemptions with retrospective effect (as in fact the Minister had done in the past) and, that there was no impediment to the new exemptions operating retrospectively and having a commencement date of 1 January 2010.
[16] TB at tab 3, tab 6 (p15) and tab 9 (p34 and p37).
[17] TB at tab 8.
The delegate, reviewed the determination of 31 October 2011, but refused to vary it in any material respect and, in particular, maintained that there is no power under the statute for any exemption to be allowed to operate with retrospective effect.[18]
[18] By letter dated 11 January 2012, TB at tab 10. An express assertion as to the lack of power to make a retrospectively operating determination is in the letter of 31 October 2011, TB tab 8, p25.
By way of further background, on 30 June 2011, that is, after Ocsalt had made its application for further exemptions on 9 September 2010, a competitor and customer of Ocsalt commenced an action in the Warden’s Court of South Australia in respect of the Lochiel leases. In that action it is alleged that Ocsalt has failed to comply with certain obligations imposed by the regulations under the Act[19] or with certain conditions of the Lochiel leases. It is alleged that Ocsalt’s failure in this respect had existed from the date of expiry of the previous exemption, that is, from 1 January 2010, on the basis that no further exemption from the working conditions of the Lochiel leases was in place and that the Lochiel leases were not being worked. The relief sought by Ocsalt’s competitor in the Warden’s Court includes a declaration that the Lochiel leases are liable to forfeiture and that the court recommend to the Minister that these leases be forfeited. Presumably, in that event, Ocsalt’s competitor will become entitled to a transfer of these leases from the Crown for the balance of their terms.[20]
[19] Regulations 50(3)(a) and 50(3)(b) of the Mining Regulations 1998.
[20] Sub-section 70(3).
The proceedings in the Warden’s Court have been stayed pending the outcome of Ocsalt’s application to this Court for judicial review of the Minister’s refusal to grant exemptions with a retrospective effect. According to Ocsalt,[21] any further decision by the Minister to grant exemptions with respect to the working conditions in the Lochiel leases with retrospective effect, would bear on the allegations in the Warden’s Court that the plaintiff was in breach of the working conditions for the period after 1 January 2010 and that any alleged breaches were of sufficient gravity to justify forfeiture of the Lochiel leases.
[21] Paragraph 20 in the affidavit of one of the plaintiff’s solicitors, Debrah Maria Mercurio, sworn 7 March 2012, and read in the application for judicial review.
Grounds for judicial review of the Minister’s decision
Ocsalt seeks declarations and an order in the nature of mandamus. It maintains that the Minister, through his delegate, misapprehended the scope of the Minister’s power under ss79(2) of the Act and erred when making the determination by:
(i)failing to recognise that ss79(2) of the Act empowered the Minister to grant exemptions for whichever period the Minister so determined which includes a period commencing on a date preceding the date of the grant of the exemption; and
(ii)refusing to consider, given the merits of the application, exercising the power available under ss79(2) of the Act to grant the exemptions for a period commencing on either 1 January 2010 (the date immediately following the expiry of the 2004 exemptions) or 9 September 2010 (the date of the application).
Ocsalt’s application for judicial review raises the question of the proper construction of ss79(2) of the Act. The defendants concede that, if Ocsalt’s construction of ss79(2) were to be upheld, the Minister, through his delegate, has not properly exercised the power available to him. Declaratory relief, to this effect, ordinarily would be sufficient and the Minister, as a “model litigant” would accept the Court’s interpretation of the Act and would consider Ocsalt’s application for exemptions afresh.[22] In such a case, it may be that, strictly, an order in the nature of mandamus would be unnecessary.
[22] Subject to the exhaustion of any appeal process and see generally, for example, P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 at 383 (Mahoney J as his Honour then was); Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd (2007) 158 FCR 325 at 327 (Allsop J with whom Stone and Edmunds JJ agreed) and the cases there cited.
Does s79 permit an exemption to be granted with retrospective operation?
Section 79 is in the following terms.
(1)Where the Minister is satisfied that circumstances exist that justify him in so doing, he may –
(a) exempt the holder of a lease or licence under this Act from the obligation to comply with a condition of the lease or licence; or
(b) exempt the holder of a mining tenement from the obligation to comply with a provision of this Act (except Part 9B).
(2)An exemption under this section –
(a) maybe be granted absolutely or on conditions; and
(b) shall remain in force for a period determined by the Minister.
(3)An exemption may not be granted under this section so as to discriminate against the holders of native title in land.
Any exemption granted pursuant to s79 “shall remain in force for a period determined by the Minister”. The question before the Court is whether the Minister is constrained by the terms of the section so that any such period during which his determination is to remain in force can start only from the date of the Minister’s determination or some subsequent date.
In Project Blue Sky Inc & Ors v Australian Broadcasting Authority[23] the majority[24] said this.
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. … “[T]he context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed. (Citations omitted.)
In The Shire President, Councillors and Ratepayers of the Shire of Swan Hill v Bradbury,[25] in an often cited passage, Dixon J said this.
In the course of the modern attempt by provisions of a legislative nature to reconcile the exercise and enjoyment of proprietary and other private rights with the conflicting considerations which are found to attend the pursuit of the common good, it has often been thought necessary to arm some public authority with a discretionary power to allow or disallow the action of the individual, notwithstanding that it has been found impossible to lay down for the guidance of the individual, or of the public authority itself, any definite rule for the exercise of the discretion. The reason for leaving the ambit of the discretion undefined may be that legislative foresight cannot trust itself to formulate in advance standards that will prove apt and sufficient in all the infinite variety of facts which may present themselves. On the other hand, it may be because no general principles or policy for governing the particular matter it is desired to control are discoverable, or, if discovered, command general agreement. Whatever may be the cause, the not infrequent result has been a general embargo or fetter upon the exercise of an individual’s private or proprietary rights unless he obtains the sanction of the public authority. When a provision of this kind is made, it is incumbent upon the public authority in whom the discretion is vested not only to enter upon the consideration of applications for its exercise but to decide them bona fide and not with a view of achieving ends or objects outside the purpose for which the discretion is conferred. The duty may be enforced by mandamus. But courts of law have no source whence they may ascertain what is the purpose of the discretion except the terms and subject matter of the statutory instrument. They must, therefore, concede to the authority a discretion unlimited by anything but the scope and object of the instrument conferring it.[26]
[23] (1998) 194 CLR 355 at [69]; and see generally [69]-[71].
[24] McHugh, Gummow, Kirby and Hayne JJ.
[25] (1937) 56 CLR 746 at 757-758.
[26] For similar statements of principle see also, for example, Water Conservation & Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (Dixon J) and Oshlack v Richmond River Council (1998) 193 CLR 72 at [21]-[22] (Gaudron and Gummow JJ).
The modern approach to statutory interpretation which focuses on context and the purpose of the Act or the particular provision in question at the expense, where appropriate, of the literal approach is encapsulated in ss22(1) of the Acts Interpretation Act 1915 (SA) and the decisions of this Court which have considered and applied it.[27] Sub-section 22(1) provides.
Subject to sub-section (2), where a provision of an act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
[27] For example, R v P, NJ (No 4) [2008] SASC 97; (2008) 183 A Crim R 461 at [78]-[86].
It is not necessary this time to consider, further, the question whether or not, in this State, there must first be more than one construction of the statutory provision in question that is “reasonably open” before s22 requires or permits resort to the purposive approach of construction.[28] I am satisfied, for the reasons that follow, that the terms of s79, considered in isolation, are such that more than one construction is “reasonably open”. In this respect, the starting point is a consideration of the language of the section itself.
[28] See the discussion by Gray J in R v P, NJ (No 4) [2008] SASC 97; (2008) 183 A Crim R 461 at [80]-[83].
The defendants submitted that the critical words of the provision do not lend support to the proposition that the Minister is empowered to make a determination that can operate retrospectively. Counsel argued, by reference to the Macquarie Dictionary definition of the word “shall” that this word contains or gives rise to two concepts; it speaks of or connotes something to occur in the future and it also speaks of or connotes a sense of the imperative, that is, a mandatory obligation. Counsel argued that the word “shall” in ss2(b) is used in its sense of indicating a future act. The words “shall remain in force” begged the question, “shall remain in force from when?” Counsel argued that this question was answered by the terms of s79 itself; any exemption so granted “shall remain in force” from the time of granting.
I accept that the word “shall” is used in the imperative sense. In other words, the legislature has commanded that, if an exemption is granted, it shall only remain in force during such period as is determined by the Minister. However, I am not persuaded that the drafter of the section necessarily intended to use the word “shall” in the sense of indicating that exemptions only as to future conduct were contemplated.
The grammatical niceties associated with the use of the word “shall” and the word “will” might be considered somewhat technical these days. Certainly, contemporary common usage of these terms does not always reflect the precision that traditional grammatical rules might call for. There is a traditional view that in order to indicate simple futurity a speaker or writer will use “shall” where the subject is expressed in the first person but “will” where the subject is expressed in the second or third person. However, where the imperative sense, a command or an expression of determination, is intended the word “will” is to be used where the subject is expressed in the first person and “shall” where the subject is expressed in the second or third person.[29] The (implied) subject in ss(2)(b) is the exemption that has or is to be granted; “[It] shall remain in force for a period determined by the Minister”. The subject here is expressed in the third person and, according to the traditional rule, the use of the word “shall” would be taken to connote its imperative or command nature but not necessarily any suggestion of futurity.
[29] RL Trask, Say what you mean! A troubleshooter’s guide to English style and usage, David R Godine, 2005, see also HW Fowler, The King’s English 2nded, 1908, chapter 2.
I am not, to this point, going so far as to suggest that the drafter of s79, by using “shall”, has deliberately excluded a construction pursuant to which the word “shall” is to be allowed any sense of futurity; only that I am not persuaded that the drafter has deliberately used the word “shall” so as to connote a future act or state of affairs.
The ambiguous nature, in this respect, of the phrase “shall remain in force” can be seen in the following example. If one wished to indicate today that a certain state of affairs was to subsist during a period from last Monday until next Friday an acceptable and common sense form of language would be that, “[the identified state of affairs] shall remain in force for the period from last Monday until next Friday”. This is so notwithstanding that the following language would more accurately and precisely state the position. “[The identified state of affairs] shall be deemed to have been in force from last Monday until today and shall continue to remain in force until next Friday”.
The use of the phrase “may exempt the holder” in ss1(a) and ss1(b) is also, to my mind, ambiguous with respect to this issue of futurity. The power to “exempt” is the primary power or discretion conferred by s79. The power to determine the period of any exemption is secondary in the sense that it qualifies the power to exempt, itself. The notion of exempting someone from an obligation does not necessarily speak only with respect to any future opportunities to comply or not comply with the obligation. The word “exempt”, as a verb, can be used to mean to grant immunity or freedom from a liability or from the control of laws or obedience to an authority or from a duty or obligation or burdensome state.[30] According to the Macquarie Dictionary,[31] it means to free from an obligation or liability and to release a person from an obligation. The notions to grant an immunity with respect to an obligation, to free from an obligation, to release from an obligation, and to exempt from an obligation, do not only speak to future conduct; all can relate to a past failure to have observed an obligation.
[30] Oxford English Dictionary 2nd ed, Vol V, fourth meaning under “exempt” as a verb.
[31] Revised third edition, p656.
Section 79 is comprised of the following elements.
(i)the Minister must first be satisfied that certain circumstances exist;
(ii)those circumstances must be such as to justify an exemption from certain obligations that otherwise would attach;
(iii)any such exemption may be granted absolutely or on conditions;
(iv)any such exemption shall be for a period determined by the Minister; and
(v)any such exemption shall remain in force for that period.
I recognise that in setting out the elements in this order, I have reversed the two clauses in ss(2)(b) ((iv) and (v) above) and, in so doing, have expressly weakened any qualifying effect (as to the future) that the phrase “shall remain in force” might, otherwise, be seen to have with respect to the phrase “for a period determined by the Minister”. Nevertheless, by separating these two elements, in this way, one breaks any adjectival nexus and the period to be determined by the Minister appears to be quite unfettered by any qualification as to the future or the past.
It is the “period” which must be determined by the Minister. The notion of a “period” invokes the identification of both a commencing point and an ending point, at least, it does so in the context of this exercise. Having determined that period, the exemption is to remain in force for its duration. The drafter could have used other terms, for example, an exemption under this section “shall be” for a period determined by the Minister, or “shall apply” or “shall operate during”. The drafter has chosen to use the word “remain”. Each of the alternative expressions, as does, in particular, “remain”, connotes the continuation of a present state of affairs and, in that sense, looks to the future. However, none of these terms, including the term “remain”, necessarily dictates the starting point from when the identified state of affairs is to continue. The phrase “shall remain” does not, of itself, identify or dictate when it was that the existing state which is to remain or continue first came about. In other words, the word “remain”, in this context is, in itself, ambiguous.
The short point is that if the Minister were to be clothed with a discretion to nominate a period, for any exemption granted, that involved a retrospective operation, the use of the phrase “he may exempt…” and the phrase “shall remain in force” with respect to the period of exemption would not, as a matter of ordinary use of language, necessarily contradict any such discretionary power. In other words, the wording that has been used by the drafter in s79 is open to a construction that permits the Minister to grant an exemption with retrospective effect. Whether or not it does so will depend upon the proper construction of s79 in the context of the Act as a whole and bearing in mind its underlying purposes. However, the language of the section considered in isolation, and contrary to the defendants’ argument, is not determinative.
The discretion granted to the Minister under s79 is, apparently, unfettered; he need only be “satisfied that circumstances exist that justify him” in granting the exemption. The period of any such exemption is also within the Minister’s, apparently, unfettered discretion – it “shall remain in force for a period determined by the Minister”. An unfettered discretion is to be exercised in good faith, not arbitrarily, capriciously or so as to frustrate the legislative intent discernable from the context in which the discretion operates.[32]
[32] Oshlack v Richmond River Council (1998) 193 CLR 72 at [22].
The context within which the discretion granted by s79 is to be construed includes the policy objectives of ensuring that the State’s mineral assets are exploited efficiently and that sufficient security of tenure is provided so as to encourage the long-term investment by the private sector necessary to permit an efficient exploitation of the mineral assets. The Minister, through his delegate the Director (and with the resources of the Department of Primary Industries and Resources available to the Director) is well placed to implement these policies and to employ the discretion available under s79 to assist in the implementation of these policies. For this reason alone, there would seem to be little justification for importing conditions or limitations on the exercise of the discretion which are not plainly indicated by the terms of s79 itself.
There is likely to be a wide variety of circumstances in which the Minister will be called upon to exercise his discretion under s79. However, the Minister has an apparently unfettered discretion to impose conditions on any exemption granted and as to the length of the period of any exemption. Accordingly, the Minister is well armed to ensure that when exercising the discretion, under s79, the policy and objectives underlying the Act are promoted and not compromised.
It may be that, in particular circumstances before the Minister, a retrospective operation of the exemption sought would be seen as undermining or compromising these policies and objectives. If so, this would be a legitimate consideration before the Minister when deciding whether or not, in the exercise of his discretion, to grant an extension having retrospective operation.
However, there may be circumstances where, on all appropriate criteria, an exemption which involves a retrospective operation is warranted and would not be seen to have any adverse impact on the policies and objects underlying the Act. In such a situation it is difficult to see why, as a matter of practical common sense, the Minister should be precluded from granting an exemption with retrospective effect. This contention would have added force in the case where an applicant had been mining for many years and had committed significant capital and other investment to its mining operations but had overlooked making an application for exemption with respect to a period, then passed, during which it had been neither in the applicant’s nor the State’s interest to conduct the mining operations. In these circumstances, exposing the applicant to the penal consequences identified earlier in these reasons is unlikely to be fair and reasonable from the applicant’s perspective nor in the State’s interest.
I return to the observation by Dixon J in Swan Hill Corporation v Bradbury.[33]
The reason for leaving the ambit of the discretion undefined may be that legislative foresight cannot trust itself to formulate in advance standards that will prove apt and sufficient in all the infinite variety of facts which may present themselves.
. . . .
[C]ourts of law have no source whence they may ascertain what is the purpose of the discretion except the terms and subject matter of the statutory instrument. They must, therefore, concede to the authority a discretion unlimited by anything but the scope and object of the instrument conferring it. This means that only a negative definition of the grounds governing the discretion maybe given. It may be possible to say that this or that consideration is extraneous to the power, but it must always been impracticable in such cases to make more than the most general positive statement of the permissible limits within which the discretion is exercisable and is beyond legal control.
[33] (1937) 56 CLR 746 at 757-758.
The fact that the previous exemptions granted to Ocsalt on 10 August 2004 were allowed to operate retrospectively from 1 January 2004 is not, of course, binding on the Minister or determinative of the point of statutory construction before the Court. The Minister may have erred on that earlier occasion. However, at a practical level, it does suggest that at the time of exercising the discretion, on that occasion, the Minister, through his delegate, did not have before him discretionary considerations that, as a matter of merits, justified an exemption only with prospective effect. Further, apart from the considerations of a general nature referred to by the defendants during submissions, to which I will turn shortly, the defendants have not drawn to the Court’s attention any particular problems with the administration of the Act and the scheme it regulates caused by the retrospective operation of the exemptions previously granted.
Ocsalt has submitted, in effect, that at the very least the Minister ought to be seen to have power to grant an exemption to operate retrospectively from the date of the application for exemption, in this case, 9 September 2010. If otherwise, an applicant would be, to some extent, at the mercy of the Minister and the time it might take for the Minister to consider and determine the application. Such an applicant would risk suffering a hiatus between the last day of compliance with the obligation in question and the date of the Minister’s determination. An applicant, sufficiently on notice of such a possibility, could take steps to protect itself. Perhaps such an applicant should make its application well prior to the time by which it is likely to find itself in breach of its obligations so as to give the Minister sufficient time to undertake the necessary enquiries and to make the determination and also leaving itself sufficient time, if necessary, to seek an order in the nature of mandamus. Alternatively, such an applicant might ensure that it continues to observe its obligations, notwithstanding any problems or difficulties confronting it in this respect, until such time as an exemption were to be granted.
However, the circumstances confronting an applicant who finds itself in this position might render these approaches impracticable. An applicant may have little or no warning of impending circumstances, wholly meritorious in terms of justifying an exemption, that would inevitably cause the applicant to breach its obligations. It is difficult to see why, in such circumstances, any application made in as timely a manner as the circumstances permit, should not lead to an exemption operating at least from the date of the application. If it were to be accepted that, in such circumstances, the Minister had power to make a determination with retrospective operation to the date of application, it is difficult to see, as a matter of principle, why retrospectivity at large should not also fall within the discretion.
Regulation 52, made pursuant to s92 of the Act, confers power on the Warden’s Court, on application, to suspend “working conditions” on a claim or a lease. It is expressly provided that the Warden’s Court may determine that any order for suspension will be taken to have had effect from the date on which the application was received by the court, that is, retrospectively.[34] Regulation 52 did not feature during the argument on Ocsalt’s application and I am not in a position, nor would it be of assistance, to consider the proper construction of this regulation. It uses different language, in material respects, from that used in s79. It is an open question whether the expressly conferred power relating to retrospective operation was thought to be necessary to provide for retrospective operation in circumstances where the language of the regulation otherwise would not permit it or to expressly confine the extent of any retrospective operation that otherwise would have been allowed for. However, what can be inferred from regulation 52 is that, as far as the circumstances embraced by that regulation are concerned, the legislature did not see any problem, in principle, with the availability of a discretionary power to suspend working conditions being allowed to operate with retrospective effect.
[34] Sub-regulation 52(5).
The defendants’ submissions focussed on the perceived risk that to construe s79 in the way argued for by the plaintiff would cause or contribute to uncertainty in the administration of the Act and potential adverse effects on the rights of third parties. Some of the examples given were, in effect, the reverse side of the concerns raised by the plaintiff.
It was submitted that the retrospective operation of an exemption would, in effect, protect a lease holder from the loss of its right of automatic renewal available pursuant to s38 of the Act. As such, it would no longer enjoy the exclusive right to conduct mining operations from the land comprised in the lease as conferred by s39 of the Act. There may be other parties who if the exemption had not been granted retrospectively and, as a consequence, the lease not renewed, might have sought to take up a lease of their own over the subject land. In my view, this consideration, whilst relevant, should not be accorded the weight placed on it by the defendants. The right of such a third party to apply for a lease, in the circumstances where an existing lease holder has been deprived of an automatic renewal, is at best an inchoate right or entitlement; it is not to be compared with, for example, the loss of an existing contractual or proprietary entitlement or right with respect to the land in question.
In any event, in the absence of steps taken by such a third party in reliance on its apparent entitlement to apply for a lease, such as to give rise to irreversible prejudice, it is difficult to see how such a third party is in a materially different position from one who is faced with the grant of an exemption operating prospectively. In practical terms, such a third party has no immediately subsisting right on the basis of which it could confidently commit itself to a course of action. A lease holder, absent an effective exemption, has to this point only lost its right of automatic renewal. It still would enjoy its existing rights under the lease in question at least until that lease came to an end either by effluxion of time or earlier suspension or forfeiture. It is not until the lease has come to an end that any question of renewal, as a practical matter, will arise. All that an existing lessee will have lost is its statutory right to automatic renewal; presumably it will still be entitled to apply for a new lease in the nature of a renewal and any contest with a third party who also seeks a lease will arise and be fought out at that time. What will have been lost if an exemption with retrospective operation were not to be granted is any sense of certainty for the applicant lease holder as to the future. Without the automatic right of renewal in place the lease holder’s capacity for efficient decision making concerning future investment and capital commitments is likely to be significantly compromised.
The defendants submit that the fact that retrospective operation of an exemption will protect an existing lease holder against the possibility of suspension or cancellation of the lease pursuant to s41 of the Act, also might adversely affect the interest of third parties. There may be a third party who, if the exemption had not been so granted and the lease thereupon cancelled might themselves have sought to take up a lease over the land in question.
Considerations similar to those discussed above in the context of automatic renewal, reduce the weight to be given to this argument, as well. Again, such a third party is in no position to take any steps which might cause irretrievable prejudice unless and until a cancellation of the lease, in fact, occurs. Section 41 of the Act does not provide for automatic cancellation where a lessee contravenes or fails to comply with a term or condition of the lease or a provision of the Act. Section 41 provides the Minister with a discretion to suspend or cancel a mining lease in those circumstances. The discretion must be exercised in good faith, not arbitrarily, capriciously or so as to frustrate the legislative intent discernable from the context in which the discretion operates.[35]
[35] Oshlack v Richmond River Council (1998) 193 CLR 72 at [22].
In addition, s41 provides for certain rights of appeal to the Environmental, Resources and Development Court in this State from any exercise by the Minister of the discretion to suspend or cancel a mining lease.[36] Further, the Minister may as a result of an appeal to the Environmental, Resources and Development Court reinstate a mining lease to a date that coincides with the initial date of the cancellation or suspension or such later date as may appear to be appropriate. From the perspective of a third party with designs on a mining tenement already subject to lease to another party, there is no certainty provided by the Act with respect to the consequences that might flow from the existing lease holder’s breach of its obligations. At least, there is no certainty until the procedures of the Act have been worked through. It is difficult to see how, in these circumstances, a retrospective operation of an exemption will necessarily compound or increase the inherent level of uncertainty already prevailing.
[36] Sub-section 41(3).
It is also put against Ocsalt that an exemption with retrospective effect might undermine the capacity of a potential competitor to seek forfeiture of a mineral claim pursuant to s69 of the Act. According to the defendants’ submission this would deny such a person the potential to obtain the preferential right to peg a claim as contemplated by ss69(3) of the Act. Again, there is a process that must be pursued in the Warden’s Court before an order for forfeiture can be made. That process includes a hearing during which the potential competitor and the lessee in question will be entitled to present their respective cases. Again, there can be no certainty of outcome as at the time of and simply on the basis of any failure by the lessee to have complied with its obligations. To this extent, a potential competitor faced with an exemption having been granted with retrospective effect is in no different position from one faced with an exemption granted with prospective effect.
The defendants raised similar concerns with respect to s70, the provisions relating to forfeiture and transfer of a lease. Under s70, the Warden’s Court, upon application by a potential competitor, may make a finding that a lease is liable to forfeiture and make a recommendation to the Minister that the lease be forfeited. The Warden’s Court can only do so if satisfied that the requirements of the Act in relation to the lease have not been complied with in a material particular and that the matter is of sufficient gravity to justify forfeiture of the lease. It is only if and when, following such a recommendation, the Minister proceeds to forfeit the lease to the Crown that the person on whose application the Court recommended forfeiture then becomes entitled to a transfer of the lease from the Crown for the balance of its term.
Again, the mere failure by a lease holder to comply with a provision of the Act, does not provide the competitor with anything other than a right to make an application to the Warden’s Court. It does not provide such a person with any certainty as to the ultimate outcome of that application. To this extent, such a competitor who is confronted with an exemption with retrospective effect is in no worse position than if it had been confronted with an exemption with prospective effect.
The situation of a third party or prospective competitor may be seen as different if they are likely to suffer prejudice as a result of taking steps, such as committing costs to a Warden’s Court application, before an exemption with retrospective effect has come to its attention, when compared with one that has committed itself in this way after an application for retrospective operation has come to its attention. In the former situation the party will have taken such steps in circumstances where, as far as its understanding is concerned, there is an extant failure by the lease holder in question to comply with its obligations. A grant of an exemption with retrospective effect may cause any such steps of commitment, such as legal costs incurred, to be thrown away and to this extent cause prejudice to the third party.
Whilst this, like each of the concerns raised by the defendants, is a relevant consideration, it cannot be a complete answer to the plaintiff’s argued for construction of s79. The proper construction of s79 is what it is. If it allows for an exemption to be granted with retrospective operation then this is something that such a third party will have to contend with when taking steps, apparently available to it, in accordance with the “rights” or “entitlements” granted by the legislation. The situation of a third party who has been caused to incur legal costs, in circumstances where it was not on notice that an exemption with retrospective effect either had been or might in the future be granted, presumably, can be accommodated in any discretionary costs determination in the Warden’s Court should the third party’s application ultimately fail for this reason alone. Furthermore, this potential exposure to costs thrown away or to other acts of commitment rendered nugatory as a result of an exemption being granted with retrospective effect is a consideration that the Minister, as decision maker, would be entitled to have regard to when considering his exercise of any such discretion.
In the present case, the proceedings in the Warden’s Court seeking forfeiture of the plaintiff’s Lochiel leases were instituted after Ocsalt made its application for exemption with retrospective effect but before that application had been determined by the Minister. As such, the position of this particular competitor or third party might be seen to be different from that had it commenced Warden’s Court proceedings prior to any application for exemption having been made and at a time when there would appear to have been extant failures by Ocsalt to comply with its obligations. I express no view about the weight, if any, to be given to this distinction other than to say that its relevance, if any, is to the exercise of the discretion not to the availability or ambit of the discretion under s79.
The possibility that s79 might confer power on the Minister to grant an exemption with retrospective effect is a matter of which any potential third party ought to have been aware. The language of the section, as I have explained earlier in these reasons, is not intractably in favour of the defendants’ position. There are more than credible arguments, as put by the plaintiff in this matter, to the effect that the underlying structure and purpose of the legislation would support a wide discretion, including as to retrospective operation, having been conferred on the Minister. The Minister has in the past, at least with respect to this plaintiff, granted exemptions with retrospective operation. In these circumstances, I am in no position to find (and, I have no evidence directly bearing on this issue) that the competitor of the plaintiff who has brought proceedings in the Warden’s Court has been misled, in any way, by the failure of the plaintiff to have an exemption in place at the time the competitor commenced its proceedings in the Warden’s Court. In addition, I have no evidence before me as to the extent to which, if at all, this competitor will suffer any irretrievable prejudice in the event that an exemption with retrospective operation were to be granted in the circumstances of this case.
Concerns related to this particular third party or third parties in general, as argued for by the defendants, can be accommodated: first, by their own decision making processes once the proper construction of s79 has been declared; second, through appropriate costs orders in the Warden’s Court in the event that the third party were to lose an action there solely as a result of an intervening exemption with retrospective effect;[37] and third, and perhaps most importantly, as part of the Minister’s discretionary consideration of whether or not to grant an exemption, the conditions upon which an exemption might be granted and as to the period during which the exemption is to operate.
[37] In this respect I express no view whatsoever as to where the merits might lie with respect to any particular costs issues. I observe only that the costs jurisdiction in the Warden’s Court is flexible and will have regard to the justice of the case once all of the merits have been exposed.
The defendants also relied, by way of analogy, on the general presumption against retrospective operation of statutes, at least, insofar as such retrospective operation might affect existing rights and liabilities by reference to events which have already occurred.[38] I am not persuaded that any analogy with the proposition, frequently found in the authorities, that in the absence of some clear statement to the contrary, an Act will be assumed not to have retrospective operation, carries much weight in the context of this administrative discretion.
[38] In the defendants’ written submissions the following cases were cited as authority for this proposition: Fisher v Hebburn Ltd (1960) 105 CLR 188 at 194 (Fullagar J); Beard v South Australia (1991) 57 SASR 65 at 80-81 (Zelling J, with whom Mohr J at 66 concurred); Kouflidis & Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321 at 332 (King CJ, with whom Mohr J at 336 concurred); Kalomel Nominees Pty Ltd v Commissioner of State Taxation [2012] SASC 10 at [33]-[35], [40]-[41] (Gray J); and Re Brighton RV Syndication Pty Ltd v Australian Securities & Investments Commission [2007] AATA 1305 at [108] (Forgie DP).
The rationale for the presumption against retrospective operation of a statute, often given, is that the legislature should not be taken to have intended to legislate for an unjust outcome.[39] In Maxwell v Murphy[40] Dixon CJ said this.
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.
In Attorney-General of New South Wales v World Best Holdings Ltd and Ors[41] Spigelman CJ proffered the qualification that a court should determine the scope and degree of any unfairness or injustice, that might be produced in a particular case by a retrospective operation and that the court should assume that, the greater the unfairness or injustice the less likely it is that Parliament intended the Act to apply retrospectively. However, at the end of the day, as with any other question of statutory construction the question of whether or not a statute might operate retrospectively in particular circumstances will, itself, be a question of statutory construction dependent on the terms of the relevant provision construed in the context of the statute as a whole.
[The application of the presumption against retrospectivity] is not sure unless the whole circumstances are considered, that is to say, the whole of the circumstances which the legislature may be assumed to have had before it. What may be seen unjust when regarded from the stand point of one person affected may be absolutely just when a broad view is taken of all who are affected. There is no remedial act which does not affect some vested right, but, when contemplated in its total effect, justice may be overwhelmingly on the other side.[42]
[39] See generally Statutory Interpretation in Australia 7th ed, DC Pearce and RS Geddes, LexisNexis, Butterworths Australia, 2011 at [10.8].
[40] (1957) 96 CLR 261 at 267.
[41] (2005) 63 NSWLR 557 at 570.
[42] George Hudson Ltd v Australian Timber Workers’ Union (1923) 32 CLR 413 at 434 (Isaacs J).
I am not persuaded that the analogy here is complete. Legislation, insofar as it confers, takes away, or adjusts rights and liabilities, will speak in one set of terms intended to cover every situation that might fall within the terms of the legislation. The present problem concerns whether or not retrospective operation should be permitted as part of a discretionary determination which, by its nature, will address each set of circumstances which come before the decision maker on an individual basis only. The question here is whether the decision maker should have the power, in appropriate cases, to permit retrospectivity of operation not whether every such case that comes before the Minister, irrespective of the merits, should attract an exemption with retrospective operation. The very concern that underpins the presumption against retrospective operation of legislation, that is, the possibility of unjustness and unfairness, is accommodated by the discretionary nature of the determination and the fact that each set of circumstances will be considered on its merits before any retrospective operation of an exemption would be permitted.
Ultimately, the question that remains is whether or not a discretion reposed in the Minister under s79 of the Act which would permit, in appropriate cases, a retrospective operation of any exemption granted, is consistent with and serves to promote the objects and purposes of the Act.[43]
[43] Port of Portland Pty Ltd v Victoria (2010) 242 CLR 348 at [9]-[13], as relied on by the defendants in their written outline, addresses a quite different situation and does not assist with the present issue.
Conclusion
There may be many circumstances where the Minister would not make a determination with retrospective operation. However, there may be circumstances where such retrospective operation plainly would be called for and where there would be no conceivable harm that would be caused either to the administration or the policy objectives of the Act or to any third party. For example, a lease holder with an existing exemption may simply overlook by a matter of days or weeks the fact that the exemption has expired and only then bring an application for a further exemption. The circumstances might be such that, but for the delay in bringing the application, the merits indicate that an exemption should be granted. It is difficult to see why, in these circumstances, the Minister should not have power to grant an exemption with retrospective operation so as to avoid, for example, the applicant losing its automatic right of renewal, entering into a period of uncertainty with respect to future investment decisions and, in time, having to compete with others for a new lease with all the wasted resource implications that would entail.
Of course, the example just given is right towards one end of the spectrum of difficulty that might confront the Minister in making such a determination and is removed from the facts of the present case. Nevertheless, it serves to demonstrate why it would be appropriate for the Minister to have the power to grant an exemption with retrospective operation. There will be situations where it will be more efficient for a problem of this nature to be resolved at the earliest stage rather than at the later stages, either in the Warden’s Court or before the Minister as contemplated by the Act.
In my view there is nothing express nor necessarily implicit in the wording of s79 which would indicate a legislative intention to restrict the ambit of the Minister’s discretion, as provided for in that section, so as to exclude the capacity to grant exemptions having a retrospective operation. I accept the plaintiff’s submission, to the effect, that the power has been conferred in wide terms with no temporal restrictions and that it should be accorded a plenary operation so as to empower the Minister to make determinations in this respect that promote or support the policy and the scheme of the Act as a whole.
Whether or not an exemption with retrospective operation in the present case would serve this purpose is a matter, at least in the first instance, for the Minister. The concerns raised by the defendants to the extent that they carry weight, are matters that properly go to the exercise of the discretion rather than to confine its ambit.
In paragraph 1 of the orders sought in its summons for relief, the plaintiff seeks a declaration in the following terms.
That s79(2) of the Mining Act (1971) (SA) authorises the first and/or second defendants to grant the plaintiff, as the holder of a mining lease under the Act, an exemption from the obligation to comply with a condition of the mining lease in respect of a period prior to the date of the application for exemption.
The plaintiff is entitled to a declaration to that effect.
The legal principles relevant to the availability, in judicial review proceedings, of an order in the nature of mandamus have recently been summarised by Gray J in Kekes v Police; Kekes v Registrar of Motor Vehicles.[44] It is not necessary to undertake that exercise again here. However, the following summarises the position sufficient for present purposes.[45]
The prerogative writ of mandamus, and an order in the nature of that writ, is a judicial command addressed to and compelling a respondent to perform a public duty. An order in the nature of mandamus would usually be available where there has been an error which amounts to a refusal or failure, whether actual or constructive, to exercise jurisdiction.[46] The failure or refusal to exercise jurisdiction may be an actual or constructive failure to exercise the power or to perform a duty. Mandamus will be invoked to compel the decision maker to exercise its powers or perform its duty according to law.
Whether there has been constructive failure involves questions of law as to the extent of the decision maker’s power. A purported performance of a statutory duty, where that purported performance is deemed legally void, is treated as a case of the decision-maker refusing or declining to perform that duty and is considered to be a constructive failure. …[47]
[44] (2009) 106 SASR 451 at [18]-[26] and [59].
[45] At [22]-[23].
[46] See, for example, Brygel v Stewart-Thornton [1992] 2 VR 387 (JD Phillips J); Potter v Tural (2000) 2 VR 612 at [26] (Batt JA, with whom Tadgell JA agreed); and at [6] (Callaway JA); see also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [41]-[42] (Gaudron J).
[47] Gray J then referred to a passage from the judgment of Rich, Dixon and McTiernan JJ in War Pensions Entitlement Appeal Tribunal & Anor;Ex parteBott, (1933) 50 CLR 228 at 242-243.
It is common ground between the parties and, in my view, correctly arrived at, that if it were to be established that the Minister’s decision to refuse to allow the exemptions to operate with retrospective effect was based on a misconstruction of s79 and therefore a misapprehension of the ambit of the power available, an error of law would be established. And, that this would amount to a constructive failure by the Minister to exercise the discretion required of him by s79. It would amount to such a constructive failure because the error of law would have caused the Minister to apply the wrong test when determining Ocsalt’s application for the exemptions.
For this reason and given my conclusion as to the proper construction of s79, ordinarily,[48] Ocsalt would be entitled to judicial review and an order in the nature of mandamus.
[48] The grant of prerogative relief such as an order in the nature of mandamus is discretionary and it may be that the matter raised in the text at fn 22 above militates against the discretion to grant prerogative relief being exercised.
I will hear the parties further as to whether there is the need for an order, in the nature of mandamus, directing the Minister to consider afresh the plaintiff’s application for the exemptions and also, generally, as to the terms of the orders to be made. The plaintiff is to prepare and provide draft minutes of order consistent with these reasons.
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