Ocsalt Pty Ltd v Minister for Mineral Resources & Energy - [2012] SASC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
OCSALT PTY LTD v MINISTER FOR MINERAL RESOURCES & ENERGY & ANOR
[2012] SASC 67
Reasons of Judge Lunn a Master of the Supreme Court
26 April 2012
PROCEDURE
Application by non-party to be joined as an additional defendant under 6R 74(1)(a) - action for mandamus to compel defendants to consider plaintiff's application for retrospective exemption from working conditions on a mining lease under s 79(2) of the Mining Act - defendants maintained they had no power to grant any retrospective exemption - non-party seeking forfeiture of plaintiff's mining lease in Warden's Court for failure to comply with working conditions - criteria for exercise of discretion under 6R 74(1).
Held: No sufficient assistance to Court from joinder of non-party to justify joinder - application refused.

OCSALT PTY LTD v MINISTER FOR MINERAL RESOURCES & ENERGY & ANOR
[2012] SASC 67
Reasons on application of Mulgundawa Investments Pty Ltd to be joined as a defendant

The plaintiff holds mining leases for salt mines at Lochiel. Conditions attached to the leases require the plaintiff to work them. In 2004 it obtained an exemption from the defendants[1] for compliance with the conditions to work the leases until 31 December 2009. On 9 September 2010 the plaintiff applied for a further exemption from the working conditions for another five years as from 1 January 2010. On 31 October 2011 the first defendant granted the plaintiff an exemption from the working conditions for a period of two years commencing on 31 October 2011, but refused to grant any exemption for the period from 1 January 2010 until 30 October 2011 on the ground that the Minister did not have the power to grant any retrospective exemption.
[1] For the purposes of these reasons it is not necessary to differentiate between the two defendants.
On 30 June 2011 Mulgundawa Investments Pty Ltd (“Mulgundawa”) had instituted proceedings in the Wardens Court seeking a determination that the Lochiel leases of the plaintiff were liable to forfeiture on the grounds that the plaintiff had not worked the leases since 1 January 2010 and did not have any exemption allowing it not to work them from that date. Those proceedings have been adjourned to await the outcome of this action.
On 8 March 2012 the plaintiff instituted this action seeking a declaration that one or other of the defendants did have power under s 79(2) of the Mining Act 1971 to grant an exemption from complying with a lease condition retrospectively or, if not at large, at least from the date on which the application for the exemption was made.[2] It also seeks judicial review by way of mandamus requiring the defendants to deal with the plaintiff’s application for exemption from the working conditions for the period from 1 January 2010 to 30 October 2011. It does not seek any other relief except for incidental matters.
[2] Ie, in this case from 9 September 2010.
By an application taken out on 29 March 2012 (FDN4) Mulgundawa is applying to “be granted permission to intervene in these proceedings and be joined as a defendant”. The application is only stated to be brought pursuant to 6R 74. Apart from the reference to “intervene” in FDN4, there was no other reference in the affidavit filed on behalf of Mulgundawa, or in its written oral and submissions, that it be permitted to be an intervener in the action. It did not seek to invoke 6R 89. I treat the application as being one solely for Mulgundawa to be joined as a defendant under 6R 74. The existing defendants took a neutral position on the application, but it was opposed by the plaintiff.
6R 74(1) provides:
The Court may, on an application … order that a person who is not a party to the action be joined as a party if satisfied that–
(a)the person has an interest in the subject matter of the action or in a question of law or fact involved in the action …
There was considerable argument on whether Mulgundawa qualified under sub-paragraph (a), but for the purpose of this application, I am prepared to assume that it does have a sufficient interest in a question of law involved in the action. However, under the preamble to 6R 74 the Court has a general judicial discretion about whether it should join a person who qualifies under sub‑paragraph (a) as an additional defendant. I confine my consideration to that issue.
There are authorities on the exercise of a similar general discretion given by s 17(1) of the Environment, Resources and Development Court Act 1993 (“s 17”).[3] The applicant for joinder must make out a proper case to justify the joinder and it will not be made as a matter of course.[4] In Onesteel Manufacturing Pty Ltd v Environment Protection Authority[5] (“Onesteel case”) Debelle J considered the criteria for the exercise of the discretion under s 17. I consider these criteria apply also to the exercise of the discretion conferred by 6R 74(1).
[3] It provides “The court may, by order, join a person as a party to any proceeding (other than criminal proceedings)”.
[4] Pitt v Environment Resources and Development Court (1995) 66 SASR 274.
[5] (2005) 92 SASR 67.
The conclusions of Debelle J are accurately summarised in the headnote, as follows:
(2)     Whether or not a party has sufficient grounds for joinder will depend on the facts of the individual case and is guided by three principles:
(a)     an order should not be made simply on the basis of an interest sufficient to give standing for judicial review;
(b)     regard should be had to the nature and strength of the interest in the decision and the contribution which the applicant for joinder is likely to make to a proper resolution of the issues; and
(c)     whether the material to be advanced by the applicant will be adequately dealt with by the persons already before the court.
Debelle J cited in support of his conclusion a judgment of Dawson J in the High Court in Australian Tape Manufacturers Association Ltd v The Commonwealth where Dawson J said:
… the mere fact that a person claims to be in a better position to call relevant evidence and to make submissions in support of a case which an existing party already seeks to make is plainly insufficient to justify the joinder of that person as a party. However desirable his presence may be to advance the presentation of the existing party’s case, he is not for that reason a person whose presence may be necessary before the court as a party.[6]
[6] Dawson J was primarily considering whether the applicant there qualified under the relevant Rule as a necessary party, which is not the issue here, but Debelle J has treated his reasons as also relevant to exercise of a general discretion under s 17.
For the reasons which follow, the proper exercise of the discretion of the Court under 6R 74(1) is to refuse to join Mulgundawa.
Firstly, the only issue in the action is a discrete question of statutory interpretation and law. It should only require a relatively short hearing.
Secondly, subject to any answering affidavits which have yet to be filed by the existing defendants, there would not appear to be any evidence required for the determination of the question of law, other than what is contained in the present affidavits on the file. While the dispute between the plaintiff and Mulgundawa has given rise to this action, the question of law would not appear to be directly related to the facts of that dispute. It is merely a question of the extent of the power conferred on the defendants by s 79(2) of the Mining Act. Hence, Mulgundawa is not likely to contribute relevant evidence.
Thirdly, there is no reason to believe that the Crown Solicitor for South Australia, who represents both defendants in the action, will not competently and properly present the defence case. The Crown Solicitor has considerable experience and expertise in these types of disputes. It has not been suggested by Mulgundawa that any particular ground of defence would not be put to the Court by the Crown Solicitor. If Mulgundawa was to be joined as a third defendant, what could its counsel put to the Court which had not already been put by counsel for the first two defendants? Presumably the Judge hearing the case would not allow a mere repetition of arguments already put forward on behalf of the first two defendants.
Fourthly, while the joinder of Mulgundawa as an additional defendant is not likely to add greatly to the length of the trial or to the overall cost of the action, no case has been made out by Mulgundawa which justifies even small additional costs being incurred by the other parties through its joinder. My experience in such matters in the past suggest that as much time is likely to be occupied at the trial arguing about what role Mulgundawa can play in the trial as would be occupied by whatever submissions it was allowed to make on the question of law. On the analogous issue of whether costs would be allowed for separate representation of Mulgundawa if it was joined as a defendant, I believe it is highly likely that the Court would treat the matter as one where there should have been common representation of all defendants.
Fifthly, the interest of Mulgundawa in the outcome of this action is only contingent. Even if the plaintiff succeeds, it is an entirely separate issue whether the defendants will then grant any retrospective exemption to the plaintiff and what effect that exemption might have on the proceedings in the Warden’s Court.
Sixthly, I do not accept Mulgundawa’s submission that the scheme of the Mining Act justifies Mulgundawa acting in the public interest to ensure compliance with conditions by holders of mining leases. While that gives Mulgundawa locus standi in the Warden’s Court, it does not mean that it can act in the public interest in this action.
I have today made the following orders:
1Paragraph 1 of FDN4 is dismissed.
2Mulgundawa is to pay the costs of FDN4.
3FDN4 certified fit for counsel.
4Liberty to the other parties to apply for supplementary costs orders on FDN4.
5Defendants to file any affidavits by 11 May 2012.
6Adjourned to a directions hearing on Thursday 17 May 2012 at 11.20am.