Paterson v The Minister for Mines and Petroleum

[2018] WASC 200

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   PATERSON -v- THE MINISTER FOR MINES AND PETROLEUM [2018] WASC 200

CORAM:   PRITCHARD J

HEARD:   20 NOVEMBER 2017; FURTHER WRITTEN SUBMISSIONS FILED 22 NOVEMBER 2017

DELIVERED          :   29 JUNE 2018

FILE NO/S:   CIV 1975 of 2017

BETWEEN:   ANDREW PATERSON

Applicant

AND

THE MINISTER FOR MINES AND PETROLEUM

Respondent

CONNECTED IO LTD

Other Party

Catchwords:

Administrative law - Judicial review - Certiorari - Mining law - Application for exploration licence - Whether procedural fairness afforded - Hearing rule - Where decision maker had ex parte communications with applicant for exploration licence

Legislation:

Mining Act 1978 (WA), s 59(6), s 111A

Result:

Application granted

Category:    B

Representation:

Counsel:

Applicant	:	Mr M McKenna
Respondent	:	No appearance
Other Party	:	Mr D R Chandler

Solicitors:

Applicant	:	Gilbert + Tobin
Respondent	:	State Solicitor for Western Australia
Other Party	:	HopgoodGanim Lawyers

Case(s) referred to in decision(s):

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1

Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88

Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7; (2003) 126 FCR 152

Commission for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Courtney v Peters [1990] FCA 526; (1990) 27 FCR 404

CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514

Dunghatti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2011) FCAFC 88; (2011) 195 FCR 318

Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149

J v Lieschke [1987] HCA 4; (1987) 162 CLR 447

Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408

Jones v Dunkel (1959) 101 CLR 298

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531

Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 218; (2003) 76 ALD 610

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; [2016] 259 CLR 180

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507

Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433

Ogawa v Minister for Immigration and Citizenship [2011] FCA 1358; (2011) 199 FCR 51

Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636

Public Service Board of New South Wales v Osmond (1986) 159 CLR 656

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Re Minister for Mines; Ex parte Roberts (1997) 18 WAR 408

Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403

Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82

Regina v Thames Magistrates' Court; Ex parte Polemis [1974] 2 All ER 1219; [1974] 1 WLR 1371

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252

Stead v State Government Insurance Commission (1986) 161 CLR 141

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Walsh v Motor Fuel Licensing Board (1991) 25 ALD 737

Table of Contents

1.    Factual background

The submissions made in respect of the s 111A Application, prior to 28 September 2016

The Department's briefing note to the Minister - 28 September 2016

Communications between Leopard and staff in the Minister's office between late September 2016 and late November 2016

2.    The Decision, and the basis for it

The statutory basis for the Decision

3.    The grounds of review

4. Whether the statutory power being exercised by the Minister ‑ namely the power under s 111A(1)(c) of the Mining Act ‑ was required to be exercised in accordance with the requirements of procedural fairness

5.    Did the Minister afford procedural fairness to Mr Paterson?

Relevant Principles

Hearing rule

Bias Rule

Did the Minister fail to afford Mr Paterson a fair hearing?

The parties' submissions

The Minister breached the fair hearing rule in that he failed to provide Mr Paterson with the opportunity to respond to information received in the course of the ex parte communications

Did the ex parte communications give rise to an apprehension of bias on the part of the Minister in relation to the Decision?

6.     Relief: Is there any reason why the Decision should not be quashed?

PRITCHARD J:

1. Until midnight on 17 March 2015, Leopard Resource NL (Leopard) was the holder of an exploration licence,[1] issued under the Mining Act 1978 (WA) (Mining Act), to explore for minerals over land in the Mt Malcolm district at Darlot North (Land). At 8.30 am on 18 March 2015, the Applicant, Mr Andrew Paterson, and three other parties,[2] lodged applications for exploration licences over the Land (other applications).  (A ballot was later conducted[3] to determine the priority of the other applications and Mr Paterson's application (Paterson Application) won that ballot.)

   [1] Exploration Licence E37/747.

   [2] The other parties which also lodged applications for exploration licences over the Land were Mineral and Gold Resources of Australia Pty Ltd, Darlot Mining Company Pty Ltd and Anglogold Ashanti Australia Ltd.

   [3] The ballot was conducted by the mining warden on 6 July 2015, pursuant to s 105A(3) of the Mining Act.

2. On 18 June 2015, Leopard lodged an application for another exploration licence over the Land (Leopard Application). Leopard then wrote to the Minister for Mines and Petroleum (Minister) and requested that he exercise his powers under s 111A of the Mining Act to refuse the other applications in the public interest, including the Paterson Application, or alternatively to grant the Leopard Application pursuant to s 59(6) of the Mining Act (s 111A Application).

3. On 28 November 2016,[4] the Minister made a decision to refuse the Paterson Application and the other applications pursuant to s 111A of the Mining Act, the effect of which was to allow the Leopard Application to proceed to determination in accordance with the Mining Act (Decision).

   [4] Mr Paterson was advised of the Minister's decision in a letter dated 13 December 2016 from the Executive Director, Tenure and Native Title, in the Department of Mines and Petroleum, but the Minister's decision was actually made on 28 November 2016:  Affidavit of James Michael Hunt affirmed 11 October 2017, annexure JMH-2.

4. Mr Paterson seeks judicial review of the Decision.  He seeks the grant of a writ of certiorari to quash the Decision on the grounds that in making the Decision the Minister breached the rules of natural justice, in that he did not provide Mr Paterson with an opportunity to be heard, or alternatively, that he demonstrated actual or apprehended bias in the decision making process.

5. Leopard, which is now known as Connected IO Ltd (CIOL),[5] opposed the application for review, and appeared at the hearing of the application for review.  The Minister filed a notice of his intention to abide the decision of the Court. 

   [5] Affidavit of Guy Simon Greer affirmed 3 August 2017, annexure GSG1.

6. For the reasons which follow, Mr Paterson has established that in making the Decision, the Minister failed to afford procedural fairness to him, and the Decision is invalid as a result. 

7. In these reasons for decision, I deal with the following matters:

   1.Factual background;

   2.The Decision, and the statutory basis for it;

   3.The grounds of review;

   4.Whether the statutory power being exercised by the Minister ‑ namely the power under s 111A(1)(c) of the Mining Act ‑ was required to be exercised in accordance with the requirements of procedural fairness;

   5.Did the Minister afford procedural fairness to Mr Paterson? and

   6.Relief - Is there any reason why the Decision should not be quashed?

1. Factual background

1. In support of his application for review, Mr Paterson relied on an affidavit he affirmed on 3 August 2017 (first Paterson affidavit), a supplementary affidavit he affirmed on 23 August 2017 (second Paterson affidavit), and an affidavit affirmed by his solicitor, Mr Guy Greer on 3 August 2017.  CIOL relied on an affidavit affirmed by its solicitor, Mr James Michael Hunt, on 11 October 2017. 

2. Mr Paterson was not provided with any reasons for the Decision.  His solicitors subsequently made an application under the Freedom of Information Act 1992 (WA) (FOI Act) for documents relating to the Decision. Some (if not all) of the documents obtained under the FOI Act were annexed to the affidavits filed by the parties.

3. The application for judicial review concerns the process adopted by the Department of Mines and Petroleum (Department) and the Minister in obtaining submissions from the parties in respect of the s 111A Application.

The submissions made in respect of the s 111A Application, prior to 28 September 2016

1. On 19 June 2015, Leopard's solicitors, Hunt and Humphry, sent a submission to the Minister on behalf of Leopard, which constituted the s 111A Application. Hunt and Humphry submitted that before Leopard's exploration licence expired, it should have applied to the Minister for an extension of time for the licence, on the basis of the existence of exceptional circumstances, including the short (less than 2‑year period) it had held the licence, the considerable amount it had expended on exploration during that period, and its hopes of entering into a joint venture to establish a gold mine on the Land. However, they submitted that Leopard had been given incorrect advice by the Department about what it was required to do to renew the exploration licence, namely merely to pay the rent for the following year within 30 days of the date of expiry of the licence. Hunt and Humphry submitted that since acquiring the exploration licence in 2013, Leopard had undertaken significant exploration on the Land and had spent over $1.2 million on exploration costs (or six times the minimum expenditure required during that period). They submitted that in those circumstances, the Minister should use his power under s 111A of the Mining Act to refuse the other applications, and then grant the Leopard Application pursuant to s 59(6) of the Mining Act.

2. On 22 July 2015, an officer of the Department wrote to Mr Paterson to advise that before the Minister made a decision in response to the s 111A Application, all affected parties would be given the opportunity to comment on it. Accordingly, Mr Paterson was invited to lodge a submission for consideration by the Minister addressing why the Paterson Application should not be refused pursuant to s 111A of the Mining Act or alternatively why the Leopard Application should not be granted pursuant to s 59(6) of the Mining Act. Mr Paterson was advised that any submission provided would be lodged

   with the understanding that it will be copied to Leopard Resources NL, and their submission will be copied to you.

   All parties will then be allowed a further fourteen (14) days from the receipt of the copy of each other's submission to provide any comments they may wish to make thereon.  Any such comments must be restricted to the contents of the opposing submission and any comments made will be copied to the opposing party.

   All submissions received will then be reviewed by the Minister prior to a final decision being made.[6]

   [6] First Paterson affidavit, annexure AGP8.

3. Mr Paterson made a submission to the Minister on 6 August 2015.[7] He refuted any suggestion that the Paterson Application should be refused under s 111A of the Mining Act, and submitted that the Leopard Application should not be granted under s 59(6) of that Act. His submission, in summary, was that the Paterson Application fully complied with the Mining Act, that he had paid the application fee and the first year's rent, and that he intended to continue exploration on the Land with the aim of developing it into a mining operation. In contrast, he submitted that Leopard did not immediately appear to realise that its exploration licence had expired. He also submitted that it was not in the public interest to grant the Leopard Application as Leopard had achieved little during the tenure of its exploration licence and had announced the intention to convert Leopard into a technology company, which was at odds with an intention to continue exploration on the Land.

   [7] First Paterson affidavit, annexure AGP9.

4. On 24 August 2015, the Department provided Mr Paterson with a copy of the submission provided by Leopard's solicitors to the Minister, to which I referred at [11] above, and invited submissions in response.[8]  The Department advised:

   Following receipt of comments made, those comments will be provided to the opposing party however no further comments should then be made. All submissions, comments and any other relevant evidence or information will then be submitted to the Minister … for his consideration and determination … .

   [8] First Paterson affidavit, annexure AGP10.

5. On 3 September 2015, Mr Paterson made a further submission to the Minister, in response to Leopard's submission.[9]  The essence of that submission was that the directors of Leopard had no reason to misunderstand the requirements of the Mining Act concerning the expiry of the exploration licence, that it had not spent as much on exploration as it had claimed, and that if an exploration licence were granted to Leopard, it would immediately sell it to pursue the objective of moving into the technology market.

   [9] First Paterson affidavit, annexure AGP11.

6. On 9 September 2015, Hunt and Humphry made a further submission to the Minister on behalf of Leopard.  They addressed the circumstances in which Leopard's exploration licence had expired, questioned whether Mr Paterson would be in a position to make the same financial commitment to exploration as Leopard had made, referred to Leopard's statements concerning its exploration work during the term of the licence, explained that Leopard's intention to convert to a technology company was the result of the expiry of the exploration licence, and confirmed that Leopard wished to remain a mineral exploration and mining company and to continue its exploration work on the Land.[10]

   [10] First Paterson affidavit, annexure AGP12.

7. On 17 September 2015, the Department provided Mr Paterson with a copy of Leopard's further submission and advised that the matter would be 'referred to the Minister with the information presently submitted therefore no further comments should be made'.[11]

   [11] First Paterson affidavit, annexure AGP12.

8. By a letter dated 15 October 2015 Hunt and Humphry wrote to the then Minister.[12]  The letter complained about a failure to afford procedural fairness to Leopard, and asserted that

   the only way Leopard can now be afforded procedural fairness is if you agree to meet with Leopard's officers before you exercise your discretion to make a decision upon the competing applications.

   Failing that a claim by Leopard for judicial review by the Supreme Court will be Leopard's only possible recourse.[13]

   [12] First Paterson affidavit, annexure AGP18.

   [13] First Paterson affidavit, annexure AGP18.

9. By a letter dated 25 November (presumably in 2015) from the then Minister to Hunt and Humphry, the Minister declined the request from Hunt and Humphry that he meet with the directors of Leopard, and instead advised that Leopard's directors should meet with officers of the Department.[14]

   [14] First Paterson affidavit, annexure AGP18.

10. Between February 2016 and May 2016, Hunt and Humphry wrote to the Department on four occasions. Those letters were not in evidence. However, a briefing note later provided to the Minister (discussed below from [22]) disclosed the tenor of that correspondence, and also indicated that a meeting occurred, presumably between officers of Leopard, and officers of the Department, on 4 February 2016. According to the briefing note, Leopard's complaints about the process adopted by the Department concerned the receipt of submissions from the other applicants apart from Mr Paterson. In so far as Mr Paterson was concerned, Leopard's complaints were that Leopard wanted the opportunity to 'respond to Mr Paterson's comments' and complained that 'Mr Paterson's comments were not restricted to the content of the submission [by Leopard in support of the s 111A Application] and had clearly raised new issues which Leopard had not been given the opportunity to comment on.'[15]

    [15] Affidavit of James Michael Hunt affirmed 11 October 2017, annexure JMH-2.

11. By a letter dated 30 June 2016, Hunt and Humphry wrote to the Minister again.[16]  (By that stage, it appears that a new minister had been appointed to the mines and petroleum portfolio.)  The letter complained about the process of consultation followed by the Department and alleged that that process had denied procedural fairness to Leopard, and then made submissions seeking 'to redress the unfairness caused to Leopard'[17] in the process adopted by the Department.  The author of the letter asserted that 'my comments and your consideration of them will complete the process as advised by the former Hon Minister … namely each applicant can lodge a submission before a specified date and each party has one opportunity to comment on each other party's submission and the comments must respond only to issues raised in that submission'.[18]  The letter went on to make responsive submissions to submissions made on behalf of one of the other applicants, and then set out responsive submissions in respect of comments made by a person whose name was redacted in the copy of the letter which was in evidence.  Counsel for Mr Paterson submitted that the latter comments were made in response to Mr Paterson's submissions in the letter sent by Mr Paterson to the Minister dated 3 September 2015.  That appears to be the case. 

The Department's briefing note to the Minister - 28 September 2016

[16] First Paterson affidavit, annexure AGP17.

[17] First Paterson affidavit, annexure AGP17.

[18] First Paterson affidavit, annexure AGP17.

1. I have already made reference to a briefing note provided by the Department to the Minister.  That briefing note, which was sent by the Acting Director General of the Department to the Minister, was dated 28 September 2016 (briefing note). 

2. The briefing note was a detailed document which was prepared for the stated purpose of enabling the Minister 'to consider the submissions made by [Leopard] to refuse in the public interest, four competing tenement applications and instead grant [the Leopard Application]'.[19] The briefing note set out the background, including the expiration of Leopard's exploration licence, the making of the Paterson Application and the other applications; the s 111A Application; the scope of s 111A and s 59(6) of the Mining Act; the history of Leopard's exploration licence; the identity of the parties who made the Paterson Application and the other applications; the determination of priority as between the Paterson Application and the other applications; the submission process in respect of the s 111A Application and the documents received from all of the parties in the course of the submission process; and a summary of the submissions made by Hunt and Humphry on behalf of Leopard, by Mr Paterson, and by the other applicants, and of the responses by the parties to each other's submissions.

   [19] Affidavit of James Michael Hunt affirmed 11 October 2017, annexure JMH-2.

1. The briefing note dealt at length with the need for procedural fairness to be afforded by the Minister in relation to his decision on the s 111A Application, to the complaints made by Hunt and Humphry that the Department had failed to afford procedural fairness to Leopard in the process which it had adopted, and the Department's rejection of that view. The Acting Director General observed that in Hunt and Humphry's letter to the former Minister, dated 15 October 2015:

   Leopard submitted that the entire process was blatantly unfair as it had not been given an opportunity to comment on the second submission lodged by Mr Paterson or the submission lodged by [Gilbert and Tobin, on behalf of one of the other applicants].  Leopard requested a meeting with your predecessor stating that the only way this situation could be rectified is for a meeting with the Directors.  Failing that, Leopard's only recourse would be to seek a judicial review in the Supreme Court.[20]

   [20] Affidavit of James Michael Hunt affirmed 11 October 2017, annexure JMH-2.

2. The Acting Director General then noted that:

   In a letter dated 25 November 2015, your predecessor responded to Leopard advising that such a meeting would be procedurally unfair as there were a number of other interested parties, and that a meeting between Leopard and [the Department] would be arranged by [the Department] to discuss the issues.

   The Directors of Leopard did not respond to [the Department's] initial contact, however, agreed to meet on 4 February 2016.  In the meeting, [the Department] presented a diagram … which detailed the submission exchange process that had taken place.  Leopard appeared confused by the process, but indicated that it had not had an opportunity to provide comment on the last two submissions.  [The Department] advised that the exchange process had concluded and it was open to Leopard to provide further submissions directly to the Minister's office and that a decision would be made as to whether it would be received into the process.

3. The Acting Director General then summarised the concerns raised by Leopard in the correspondence from Hunt and Humphry (to which I have already referred), at the meeting with Departmental officers on 4 February 2016, and in Hunt and Humphry's letter to the Minister of 30 June 2016.  The Acting Director General then advised that:

   Should you be mindful of accepting the additional comments made by Leopard then these comments would need to be exchanged with the other affected party.  These comments are viewed by [the Department] as additional comments to the submission exchange process and the affected parties have not had a right of reply ensuring procedural fairness.[21]

   [21] Affidavit of James Michael Hunt affirmed 11 October 2017, annexure JMH-2.

4. The Acting Director General then set out three alternative recommended courses of action for the Minister:[22]

   Following consideration of the submissions lodged by all parties that you determinate (sic) to:

   1.allow the [Paterson Application and the other applications] to proceed through the determination process under the Mining Act and the Native Title Act 1993 (Cth); or

   2.refuse the [Paterson Application and the other applications] in the public interest, pursuant to section 111A of the Mining Act, and allow [the Leopard Application] to proceed through the determination process under the Mining Act and Native Title Act 1993 (Cth); or

   3.accept the additional responsive comments from Leopard in the letter sent to you on 30 June 2016.  Request [the Department] exchange these comments with the other affected parties as part of the submission exchange process, seeking their further responsive comments, and then forward this matter back to you for your determination.

Communications between Leopard and staff in the Minister's office between late September 2016 and late November 2016

[22] Affidavit of James Michael Hunt affirmed 11 October 2017, annexure JMH-2.

1. In the period between late September 2016 and 21 November 2016, a series of emails passed between a person associated with Leopard (Leopard officer) (whose name had been redacted from the copies of the documents in evidence) and two principal policy advisors (Advisors) in the office of the Minister.[23]  Those emails indicated that the Minister did not have time in his schedule to meet with the Leopard officer, but instead the Leopard officer was invited to meet with the Advisors. 

   [23] First Paterson affidavit, annexure AGP14, AGP16.

2. In advance of that meeting, the Leopard officer was invited to provide some dot points 'of the key issues you'd like to discuss and the outcomes you are seeking'.[24]  In response to that suggestion, in an email sent on 26 September 2016, the Leopard officer submitted 'some background for our discussions' which, amongst other things, explained that the expiry of Leopard's exploration licence had come about inadvertently, and in part as a result of alleged misleading advice from the Department.  The Leopard officer went on to submit that the Minister should intervene to refuse the other applications and to direct that the Leopard Application be granted (subject to compliance with native title processes),

   [24] First Paterson affidavit, annexure AGP14.

   because fairness requires it for the following reasons:

   (1)The process of submissions followed by [the Department] did not accord with [the Department's] long established policy, the Minister's advice to Leopard and the law relating to natural justice and procedural fairness in that:

   •[the Department] accepted a submission from Gilbert & Tobin out of time.  That submission should not be put before the Minister.

   •[the Department] declined to allow Leopard to comment on Gilbert & Tobin's submission.  An obvious breach of natural justice.

   •[name redacted's] comments raised matters which went beyond the issues raised in Leopard's submission.  Several of [name redacted's] comments should not be put before the Minister.

   (2)Leaving aside technical matters, the important requirements of holding an exploration licence and the fundamental objects of the Mining Act (explore and develop) were fully met by Leopard. …

   …

   There is a very sound reason why the Minister is given absolute discretion whether to grant an [exploration licence] regardless of any warden's recommendations or failure to observe a requirement of the Mining Act.  From time to time circumstances arise where a strict application of the processes of the Act would result in injustice which the Minister (who is entitled to take a broad view of the industry) is given the power to remedy … .[25]

   [25] First Paterson affidavit, annexure AGP14.

3. The Leopard officer met with the Minister's two principal policy officers on 27 September 2016.  The documents in evidence include what appears to be a handwritten file note recording the discussion at that meeting.  The names of third parties appear to have been redacted, but the note included the following:[26]

   [26] First Paterson affidavit, annexure AGP14.

   March 2015 - paid EL rent 1 week overdue.  Hasn't been returned.  Presume process is still ongoing.

   …

   [The Department] provided incorrect verbal advice - Kalgoorlie office.

   $1.2 million expenditure - Leopard.

   Now 3 competing applications.

   18 months on, no certainty.

   …

   Where is it in the process?

   3 parties applied: [names redacted]

   …

   Now just between Leopard and [name redacted]?

   [Leopard] to send thru corro and names of persons involved at [the Department].

   What is the status of the tenement?  Expired, pending.

4. Following that meeting, the Leopard officer sent a further email to the Minister's two Advisors which advised:

   As discussed, we need to have this resolved for our shareholders as they are being unfairly affected considering the expenditure and subsequent value of the asset is being compromised by an oversight of the previous [text redacted].  Based on the previous expenditure being 6x the minimum requirement it is clear that the intention was never to let the [exploration licence] lapse and due to this oversight other opportunistic parties have taken the opportunity to take away the asset from the [Leopard] shareholders.

   The [exploration licence] payment was paid within the timeframe verbally suggested by the [Department] at the time.  … [Leopard] has had 18 months of waiting with to and fro between [the Department] and [name redacted].  It is very frustrating for us as directors and also for our shareholders who have all but lost faith in our board on the basis we are not providing them answers.

   Your assistance would be greatly appreciated.[27]

   [27] First Paterson affidavit, annexure AGP14.

5. Leopard's submission, which emerged from the correspondence from the Leopard officer to the Minister's two Advisors and from their meeting, appears, in summary, to have been that the expiration of Leopard's exploration licence occurred through an oversight, or was brought about by allegedly incorrect advice from the Department and thus occurred through no fault of Leopard's; that Leopard had expended a considerable amount of money in exploration activities; the other applications (including the Paterson application) were from 'opportunistic' parties who, implicitly, were not genuinely seeking an exploration licence over the Land in order to engage in mineral exploration; and that in all the circumstances it would be unfair to Leopard not to grant it another exploration licence.

6. Subsequent to the meeting between the Leopard officer and the Minister's two Advisors, it is apparent that the Leopard officer forwarded to the Advisors 'additional correspondence as discussed'.[28]  There was no evidence as to what that correspondence was.

   [28] First Paterson affidavit, annexure AGP14.

7. On 21 November 2016, one of the Minister's Advisors advised the Leopard officer that 'the matter is likely to be presented to the Minister this week for a decision'.[29]

   [29] First Paterson affidavit, annexure AGP14.

1. The Decision, and the basis for it

1. The Decision was noted on the bottom of the briefing note, where the Minister endorsed his approval for the second of three alternative courses of action recommended in the briefing note ‑ that is, that he 'refuse the [Paterson Application and the other applications] in the public interest, pursuant to s 111A of the Mining Act, and allow [the Leopard Application] to proceed through the determination process under the Mining Act and Native Title Act 1993 (Cth).' The Minister appears to have signed that endorsement on 28 November 2016.

2. There was no evidence that the Minister provided Mr Paterson with a written decision in respect of the s 111A Application. Instead, Mr Paterson was notified of the fact that the Minister had made the Decision, and what that decision was, by a letter from the Department dated 13 December 2016[30] which advised that:

   You will recall that Leopard lodged a submission with the [Minister] seeking his intervention pursuant to section 111A of the Mining Act1978 to have your application refused.

   A submission exchange was facilitated by this Department at the request of the [Minister].  I note that you engaged fully in that process and lodged a submission and subsequently provided responsive comments to Leopard's submission. 

   Having carefully considered all submissions and responsive comments submitted in the process, the Minister refused the above application and has determined that Leopard's new application … should proceed to determination.

   [30] First Paterson affidavit, annexure AGP13.

3. No reasons for the Decision have been provided to Mr Paterson.  There was no obligation on the Minister to provide reasons for the Decision.[31]  The fact that the Minister's two Advisors met with the Leopard officer after the briefing note was prepared, and before the Minister made by the Decision, means that this is not one of those cases[32] in which it can be inferred that the briefing note endorsed with the Decision sets out the reasons for the Decision.  Instead, this is a case where it is not possible to be certain about what the Minister's reasons for the Decision actually were. 

   [31] Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.

   [32] See, eg, Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 218; (2003) 76 ALD 610 [32] - [52], cf Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433, [49] - [55]; Ayan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 7; (2003) 126 FCR 152 [56] - [57].

4. Mr Paterson deposed that as at 13 December 2016, he was not aware of any written submissions made by Leopard to the Minister in relation to the s 111A Application other than those referred to at [11] and [16] above, nor was he aware of any meeting between representatives of Leopard and representatives of the Minister's office (such as the principal policy officers) regarding the s 111A Application. He also deposed that he was not provided with any opportunity to consider and respond to any further written submissions made by Leopard to the Minister, or to meet with the Minister or his representatives in relation to the s 111A Application.[33]

   [33] First Paterson affidavit [28] - [29].

5. Mr Paterson deposed that had he been made aware that further written submissions had been made, he would have prepared and submitted additional written submissions in response, and the content of those would likely have included 'a rebuttal of each of Leopard's criticisms of my submissions' and 'a summary of my capability to explore the ground, including a detailed plan of the exploration work I planned to carry out'.[34]

The statutory basis for the Decision

[34] Second Paterson affidavit [7].

1. It is convenient at this point to mention the statutory framework for the various applications made in this case.

2. Leopard held an exploration licence under the Mining Act.  Although it could have sought an extension of the term of that licence,[35] its failure to do so meant that the licence expired.[36]

   [35] Mining Act 1978 (WA) s 61(3); Mining Regulations 1981 (WA) r 23A.

   [36] Mining Act 1978 (WA) s 61(1).

3. The Paterson Application, the Leopard Application, and the other applications were applications for an exploration licence in respect of the Land.  Such applications must be made in a prescribed form, and meet the requirements set out in s 58(1) of the Mining Act. 

4. The effect of the priority afforded to the Paterson Application, as a result of the ballot conducted by the warden, was that the Paterson Application had 'the right in priority over every other applicant to have granted to him in respect of that land or part the mining tenement to which his application relates'.[37]  That was not a right to the grant of the exploration licence, because the Minister is not bound to grant an application for an exploration licence.  Rather, when the Minister is considering all of the applications for exploration licences in respect of the same land, and decides to grant an exploration licence, the Minister will consider all the applications and will bear in mind that one has priority.  In that situation, if all other things are equal, the application with the right in priority (because it was first in time, or because it won the ballot) will be successful.[38]

   [37] Mining Act 1978 (WA) s 105A(1) and (3).

   [38] Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 170 (Brennan CJ, Gaudron & Gummow JJ), 178 (Dawson & Toohey JJ).

5. If no party objects to the grant of an application for an exploration licence, the mining registrar is required to forward to the Minister a report which recommends the grant or refusal of the exploration licence.[39]  If a notice of objection is lodged, the mining warden is to hear the application for the exploration licence and give any objector the opportunity to be heard.[40]  (In the present case, counsel indicated that an objection had been made to the Leopard Application,[41] but there was no evidence about that objection.)  The warden is then required to forward a report for the Minister's consideration, recommending the grant or refusal of the exploration licence.[42]  On receiving a report from the mining registrar or the mining warden, as the case may be, the Minister has power to grant or refuse an exploration licence as the Minister thinks fit.[43]

   [39] Mining Act 1978 (WA) s 59(2).

   [40] Mining Act 1978 (WA) s 59(4).

   [41] ts 8.

   [42] Mining Act 1978 (WA) s 59(5).

   [43] Mining Act 1978 (WA) s 59(6).

6. The Minister also has power to refuse an application for a mining tenement (including an exploration licence) under s 111A of the Mining Act. He may do so on a variety of bases, but in this case, the Minister relied on his power to refuse the Paterson Application, and the other applications, in the public interest. The Minister relevantly has the power to refuse an application for an exploration licence if, in respect of the whole or any part of the land to which the application relates, the Minister is satisfied on reasonable grounds in the public interest that the application should not be granted.[44]

   [44] Mining Act 1978 (WA) s 111A(1)(b) and (c).

7. The effect of the Minister's Decision had the result that the Leopard Application continued on foot, to be determined in accordance with the requirements of the Mining Act, as I have outlined them above.

1. The grounds of review

1. In essence, the grounds of review are:

   1.Prior to making the Decision:

   (a)The Minister received further written submissions from Leopard in support of the s 111A Application and did not provide Mr Paterson with notice that he had received further written submissions from Leopard or an opportunity to respond to those comments; and

   (b)The Minister's senior policy advisers met with representatives of Leopard in relation to the s 111A Application and did not provide Mr Paterson with notice of this meeting or an equal opportunity to meet with the Minister or his policy advisers in relation to the s 111A Application.

   2.By:

   (a)Receiving the written submissions from Leopard referred to in paragraph 1(a) above and not providing Mr Paterson with notice of receipt of these submissions and an opportunity to respond to them; and

   (b)Not providing Mr Paterson with notice of the meeting referred to in paragraph 1(b) above and an equal opportunity to meet with the Minister or his policy advisers in relation to the s 111A Application,

   the Minister breached the rules of natural justice in making the Decision, in that he did not provide Mr Paterson with an opportunity to be heard or, alternatively, demonstrated actual or apprehended bias in the decision making process.

   3.The breaches of the rules of natural justice referred to in paragraph 2 above are errors of law and grounds for the issue of a writ of certiorari to quash the Decision.

2. Although the grounds of review referred to actual bias, as well as apprehended bias, there was no evidence to suggest any actual bias by the Minister, and the parties proceeded on the basis that what was asserted was the apprehension of bias only.

3. In determining whether prerogative relief should be granted to Mr Paterson, the following issues require consideration:

   (i)Whether the statutory power being exercised by the Minister ‑ namely the power under s 111A(1)(c) of the Mining Act - was required to be exercised in accordance with the requirements of procedural fairness;

   (ii)If so, whether the Minister afforded procedural fairness to Mr Paterson in this case; and

   (iii)If the Minister failed to afford procedural fairness, and given that certiorari is a discretionary remedy, whether there is any reason why certiorari should not be granted to quash the Decision.

1. Whether the statutory power being exercised by the Minister ‑ namely the power under s 111A(1)(c) of the Mining Act ‑ was required to be exercised in accordance with the requirements of procedural fairness

1. The parties were in agreement that the power in s 111A of the Mining Act was to be exercised in accordance with the requirements of procedural fairness. Following the hearing, counsel for Mr Paterson filed a supplementary submission which was prepared in consultation with counsel for CIOL.

2. The submissions of counsel as to why s 111A was to be exercised in accordance with the requirements of procedural fairness were, in summary, as follows:

   (i)The interest held by an applicant for an exploration licence is 'a right to a determination of their application in accordance with the Mining Act'.[45] 

   (ii)An applicant for an exploration licence 'has a right to the grant of their application if there are competing applications and the Minister has considered all competing applications and found 'all things' to be equal'.[46] 

   (iii)In this case, Mr Paterson had a right under s 58, s 59 and s 105A for the consideration of his exploration licence application as being first in time to all other mining tenement applications over the Land, and had a right to the grant of that application provided that the Minister had considered all competing applications and found 'all things are equal'.[47]

   [45] Applicant's supplementary submissions [14].

   [46] Applicant's supplementary submissions [23], referring to Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403.

   [47] Applicant's supplementary submissions [24].

3. In my view, in exercising power under s 111A(1)(c) of the Mining Act to make the Decision, the Minister was required to afford procedural fairness to Mr Paterson. Both principle and authority support that conclusion.

4. When a statute confers power on the executive government to adversely affect the rights or interests of a person, the common law will, subject to the manifestation of a clear contrary intention,[48] imply into that statute, as a matter of statutory interpretation, a condition that the power be exercised in compliance with the requirements of natural justice (or, as is more commonly put, procedural fairness) to that person.[49]  The term 'procedural fairness' (in contradistinction to 'natural justice') refers to 'the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case'.[50]

   [48] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 (Mason J).

   [49] Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; [2016] 259 CLR 180 [75] (the Court).

   [50] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585 (Mason J).

5. Observance of the requirement to afford procedural fairness is a condition which attaches to the statutory power and governs its exercise, so that a failure to fulfil that condition will result in an invalid exercise of power.[51]  Consequently, a failure to afford procedural fairness (where the requirement to do so exists) constitutes a jurisdictional error.[52] 

   [51] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, [11] - [13] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ).

   [52] Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 [71] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ), referring with approval to Professor Aronson's suggested categories of jurisdictional error, which included denial of natural justice; see also Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, [41] (Gaudron & Gummow JJ, Gleeson CJ agreeing at [5]), [132] (Kirby J), [169] ‑ [170] (Hayne J).

6. The requirement to afford procedural fairness will not be confined to those cases where legal rights may be affected, but extends also to those cases where a person's interests will be adversely affected.  The term 'interest' bears a wide meaning which encompasses the 'interests of individuals which do not amount to legal rights but which are affected by the myriad and complex powers conferred on the bureaucracy'.[53]  The implication of a requirement to afford procedural fairness has usually been determined by reference to the character of the interest which the exercise of the power is liable to affect, and the degree of potential impact on that interest (for example, that the exercise of the power may destroy, or prejudice, or substantially adversely affect, that interest).

   [53] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 616 - 617 (Brennan J) approved in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636, [66] (Gummow, Hayne, Crennan & Bell JJ).

7. To speak of an 'interest' is to refer to some position, benefit or entitlement which is possessed or enjoyed by a person prior to the making of the administrative decision in question, and which is liable to be adversely affected by that decision.[54]  Typically, personal liberty,[55] status,[56] the preservation of livelihood and reputation,[57] proprietary or financial interests[58] or familial interests[59] have been accepted as constituting 'interests' in this context.  However, as Brennan J observed, an 'almost infinite variety'[60] of interests are protected by the principles of procedural fairness. 

   [54] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 619 (Brennan J).

   [55] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582 (Mason J).

   [56] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582 (Mason J), 632 (Deane J) (immigration status); Courtney v Peters [1990] FCA 526; (1990) 27 FCR 404 (eligibility for grant of a pension).

   [57] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582 (Mason J), 616 - 617, 619 (Brennan J); Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 578 (Mason CJ, Dawson, Toohey & Gaudron JJ), 585 (Brennan J); Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, 437 (Dawson J), 471 (McHugh J); Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, 608 ‑ 609 (Brennan J).

   [58] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582 (Mason J), 616 - 617, 619 (Brennan J).

   [59] J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, 457 - 458 (Brennan J, Mason, Wilson & Dawson JJ agreeing), 463 - 464 (Deane J)

   [60] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 617 (Brennan J).

8. What constitutes an interest which is sufficient to give rise to the requirement to afford procedural fairness is not entirely settled.  The test most commonly applied in the cases is whether the decision under challenge would have an immediate or direct impact on the applicant's interests, rather than an indirect and inconsequential impact.[61]  Consequently, decisions which have merely an indirect impact on an individual will not give rise to a requirement to afford procedural fairness.[62]

   [61] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 (Mason J); see also Walsh v Motor Fuel Licensing Board (1991) 25 ALD 737, 744 (Olsson J).

   [62] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 (Mason J).

9. However, if a decision which does not itself directly affect rights or interests (such as the making of a recommendation or the giving of an advisory opinion) is a prerequisite or necessary precursor to a decision which does affect rights or interests (for example, if the earlier decision is a preliminary step in the decision making process to which the decision maker must have regard, or is otherwise sufficiently connected with the final decision), the earlier decision will itself be regarded as one to which certiorari for jurisdictional error will lie.[63]  (So, for example, whether or not the decision of a warden, to conduct a ballot under s 105A of the Mining Act to determine the priority of applications for an exploration licence over land, itself creates a legal right, the fact that a legal right ‑ namely an exploration licence ‑ may be granted at the end of that process is a sufficient legal interest which extends to characterisation of the earlier decision of the warden.  The question in that case is whether a decision to conduct a ballot is one which has an apparent or discernible legal effect upon the final decision to grant or refuse an application for an exploration licence.[64]  In Hot Holdings Pty Ltd v Creasy, a majority of the High Court held that it did.[65])

   [63] See, eg, Hot Holdings Pty Ltd v Creasy (1995) 185 CLR 149, 159, 162 and 165 (Brennan CJ, Gaudron & Gummow JJ).

   [64] Hot Holdings Pty Ltd v Creasy (1995) 185 CLR 149, 168 and 170 (Brennan CJ, Gaudron & Gummow JJ).

   [65] Hot Holdings Pty Ltd v Creasy (1995) 185 CLR 149, 175 (Brennan CJ, Gaudron and Gummow JJ).

10. Turning to the Mining Act provisions of present relevance, the starting point is that an application for an exploration licence does not give the applicant a right or entitlement to, or interest in, the grant of an exploration licence.  The mere making of the application does not, of itself, have a discernible legal effect upon the decision whether to grant the licence, because the Minister has a discretion to grant or refuse the licence as the Minister thinks fit.[66]  Consequently, in Cazaly, Buss JA (as his Honour was then), with whom Wheeler JA and Pullin JA agreed, concluded that a decision of a Minister under s 111A to terminate or refuse an application for an exploration licence does not deprive the applicant of a right to have the application granted or a right to have the application considered without regard to competing applications.[67] 

    [66] Mining Act 1978 (WA) s 59(6).

    [67] Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [263] (Buss JA, Wheeler JA & Pullin JA agreeing).

11. However, in Cazaly, the Court clearly proceeded on the basis that the Minister's exercise of power under s 111A was subject to a requirement to afford procedural fairness. The basis on which it did so is not, with respect, entirely clear.

12. In my view, an applicant for an exploration licence is entitled to the application of the statutory process set out in s 59 of the Mining Act. The refusal of that application pursuant to s 111A(1)(c) would deprive the applicant for the licence of that entitlement. Furthermore, if an applicant for an exploration licence is one who has a right in priority over any other applicant pursuant to s 105A (as was the case here) the refusal of the application for the exploration licence under s 111A(1)(c) deprives the applicant of the right in priority which he or she would otherwise have over every other applicant, if the Minister is disposed to grant an exploration licence, and in a case where all other things are equal, to have the exploration licence granted.[68] 

    [68] Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403, [261] ‑ [262] (Buss JA, Wheeler JA & Pullin JA agreeing); cf Re Minister for Mines; Ex parte Roberts (1997) 18 WAR 408, 416 (Steytler J, Malcolm CJ & Kennedy J agreeing) which relied on the existence of a legitimate expectation by the applicant that he or she would obtain the tenement.

13. For present purposes, I proceed on the basis that the Minister was required to afford procedural fairness in exercising his power under s 111A(1)(c) of the Mining Act.

1. Did the Minister afford procedural fairness to Mr Paterson?

Relevant Principles

1. Natural justice or procedural fairness is traditionally said to encompass two rules:  the hearing rule ‑ which requires a decision maker to hear a person before making a decision which may affect the rights or interests of that person ‑ and the bias rule ‑ which requires that decisions be made by an impartial decision maker, and results in the disqualification of a decision maker whose impartiality may be open to doubt in the circumstances of the case.

Hearing rule

1. Turning first to the hearing rule, the basic principle is that where a decision will deprive a person of some right or interest, the party liable to be adversely affected by that decision is entitled to know the case against them and to be given an opportunity of replying to it.[69]  What is encompassed by knowing the case against a party may depend on the circumstances.  So, for example, in a case involving the exercise of a statutory power to conduct an inquiry, procedural fairness will require that:

   a person whose interest is apt to be affected be put on notice of:  the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.  Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry.[70]

   [69] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582 (Mason J).

   [70] Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 [83].

2. The requirements of procedural fairness are essentially practical, and will depend upon the legislative framework and all the circumstances of the particular case.[71]  In very general terms, procedural fairness will encompass considerations of how the party should be heard (for example, orally or in writing), the adequacy of the opportunity to be heard (for example, in terms of the provision of adequate notice of a hearing date or of the deadline for the provision of a written response)[72] and the identification of issues on which the party may wish to be heard (including, in particular, whether the party concerned has been alerted to any critical issue not apparent from the nature of the decision or the terms of the statutory power,[73] or any potential adverse conclusion which would not obviously be open on the known material[74]).

   [71] Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, 513 - 514 (Aickin J); Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 [60]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, [37] (Gleeson CJ), [48] (McHugh & Gummow JJ); CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 [306] (Kiefel J).

   [72] Regina v Thames Magistrates' Court; Ex parte Polemis [1974] 2 All ER 1219; [1974] 1 WLR 1371, 1375 (Lord Widgery CJ).

   [73] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, 599 (French CJ & Kiefel J, Heydon & Crennan JJ agreeing).

   [74] Commission for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [29] ff.

3. Without attempting any exhaustive list, the factors that may be relevant,[75] cumulatively,[76] to determining what constitutes an adequate opportunity to provide a response to a decision maker will include the importance of the matter being determined, or the consequences of the exercise of power; the number and complexity of the legal and factual issues involved; whether the issues involve legal (or other) expertise and if so, whether the party is legally represented; the volume of materials involved; any opportunity previously provided to assemble any factual materials relevant to the party's case, and to provide any submissions in relation to that case; in a case where there has been an earlier opportunity to present the case, whether any further materials need to be obtained, or whether new issues or materials have been raised before the decision maker to which the party needs to respond; and any statutory time limit, or other time constraint, applicable to the decision maker's exercise of power.

   [75] Cf Dunghatti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2011) FCAFC 88; (2011) 195 FCR 318 [84] - [90] (in the context of the requirement that a response to a 'show cause' notice, issued under s 487-10 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), be provided within a 'reasonable period specified in the notice').

   [76] Cf Ogawa v Minister for Immigration and Citizenship [2011] FCA 1358; (2011) 199 FCR 51 [37] (Flick J) (in the context of the requirement for 'reasonable notice' of an invitation to appear before the Migration Review Tribunal under the Migration Act 1958 (Cth) s 360A(4)).

4. A decision maker is not required to put a party on notice of every piece of information which he or she receives.  However, if a decision maker receives information adverse to a party, and which is 'credible, relevant and significant' to the decision to be made[77] ‑ in other words, information which cannot be dismissed from further consideration by the decision maker before making the decision[78] ‑ the party should be advised of at least the substance of that adverse information and given the opportunity to respond.  The requirement to disclose adverse information in order to afford procedural fairness does not depend on whether it can be shown that the adverse material played a part (whether consciously or not) in influencing the decision.[79]

   [77] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 628 - 629 (Brennan J); Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88, [15] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ).

   [78] Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 [16] ‑ [17] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ).

   [79] Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 [18] ‑ [19] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ).

5. Sometimes a decision-maker's departure from the procedure adopted to deal with the decision may constitute a denial of procedural fairness.[80]  In such a case, establishing an unfairness about the decision‑maker's departure from a procedure adopted for the making of the decision does not depend on the applicant providing evidence that he or she was misled or prejudiced.  In a case where the party does not know the nature or content of the information in respect of which they were deprived of the opportunity to respond, it will not be possible for that party to specify what response he or she would have made to it.[81]

Bias Rule

[80] Cf Robinson v Fielding [2015] WASC 108; Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] HCA 62; (2004) 221 CLR 1, 9 (McHugh, Gummow, Callinan & Heydon JJ).

[81] Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1, 10 (McHugh, Gummow, Callinan & Heydon JJ).

1. Turning next to the bias rule, it is that administrative decisions must be made by an impartial decision maker who is free from any actual bias, and from any reasonable apprehension of bias.  In Cazaly,[82] Buss JA, with whom Wheeler JA and Pullin JA agreed, summarised the rule as follows:

   [82] Re Minister for Resources; Ex parte Cazaly Iron PtyLtd[2007] WASCA 175; (2007) 34 WAR 403, [273] ‑ [275] (Buss JA, Wheeler JA & Pullin JA agreeing).

   The general test for apprehended bias is whether a hypothetical fair‑minded person who is properly informed as to:

   (a)The statutory content and decision-making structure;

   (b)The matters to be decided; and

   (c)The objective facts which are material to the allegations of apprehended bias,

   might reasonably apprehend that the decision maker might not bring an independent and impartial mind to the resolution of the decision he or she is required to make.

   The application of this principle requires two steps.  First, the identification of what it is said might lead the decision-maker to decide the matters in issue other than on their merits.  Second, an articulation of the logical connection between the matters in issue, and the apprehended fear that those matters will not be decided on their merits.

   The question whether a decision-maker might not bring an independent and impartial mind to the resolution of the relevant issues is one of possibility (real and not remote) not probability.  'Apprehended bias must, however, be quite firmly established':  a vague sense of unease or disquiet is not enough. (case references and citations omitted)

1. The discovery of ex parte communications can be significant in relation to a breach of the requirement for a fair hearing, and because it may give rise to apprehended bias on the part of the decision maker.  In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[83] Brennan J (as his Honour was then) explained:

   Where a matter submitted to an open inquiry involves a conflict between the interests of parties, and the decision is apt to affect some parties advantageously and to affect others detrimentally, an ex parte communication between one party and the decision-maker offends the requirements of natural justice:  it deprives the opposing party of an opportunity to be heard on a matter affecting his interests and the integrity of the administrative process is eroded by partiality on the part of the decision-maker.  The general rule, founded firmly on the requirements of natural justice, is that information furnished by an ex parte communication must not be taken into account without giving the parties whose interests might be affected by the information an opportunity to correct or contradict it.

   [83] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 58 (Brennan J); cited by Buss JA (Wheeler JA & Pullin JA agreeing) in Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [276].

2. Whether an ex parte communication will give rise to apprehended bias on the part of the decision maker will depend on all of the circumstances of the case. 

Did the Minister fail to afford Mr Paterson a fair hearing?

The parties' submissions

1. The submissions of counsel for Mr Paterson were, in summary, as follows:

   (i)The submissions provided to the Minister on 30 June 2016, and in the course of the emails between the Leopard officer and the Minister's principal policy officers, which were not disclosed to the other parties, and the meeting held on 27 September 2016 between the Leopard officer and those two officers (to which I will refer, collectively, as the ex parte communications) constituted a breach of both the hearing rule and the bias rule;[84]

   (ii)The Department had adopted an internal procedure for dealing with applications to the Minister to refuse or terminate applications for mining tenements under s 111A of the Mining Act, and that procedure was not followed in this case. The ex parte communications constituted a departure from the process the Department had indicated would govern the consultation concerning the s 111A Application. That departure constituted a denial of procedural fairness to Mr Paterson;[85]

   (iii)The Minister breached the hearing rule by failing to provide Mr Paterson or any other parties with notice of the meeting on 27 September 2016 and permitting them to attend;

   (iv)The notes of the meeting on 27 September 2016 do not appear to constitute a full written record of that meeting, and neither Leopard nor the Minister has put on evidence as to what occurred at the meeting.  That gives rise to an inference that any evidence that might have been given by Leopard as to what occurred at the meeting would not have been helpful to its position;[86]

   (v)At least some of the matters raised by the Leopard officer in the ex parte communications were not disclosed to Mr Paterson and he was not given the opportunity to respond to them.  The ex parte communications included a submission that many of Mr Paterson's submissions were incorrect, that Leopard's failure to seek an extension of Leopard's exploration licence was due to a misunderstanding and incorrect Departmental advice; and that Mr Paterson's submissions raised matters which went beyond Leopard's submissions and should not be put before the Minister.  Those matters constituted matters which were 'relevant, credible and significant'[87] and if the Minister proposed to rely on those matters in making a decision adverse to Mr Paterson's interests, he should have disclosed those matters to Mr Paterson and permitted him the opportunity to respond.  The Minister's failure to do so constituted a denial of procedural fairness to Mr Paterson;

   [84] Counsel relied on Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 [58] (Brennan J).

   [85] Counsel relied on Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 [27].

   [86] Counsel relied in particular on Jones v Dunkel (1959) 101 CLR 298.

   [87] Counsel relied on ApplicantVEAL of 2002 v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 [95] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ).

2. The submissions of counsel for CIOL were, in summary, as follows:

   (i)Natural justice is concerned with 'practical injustice.  It is not about numbers; it is not about parties with competing interests getting the same number of meetings or submissions before a decision maker';[88]

   (ii)Natural justice does not require a decision maker to strictly follow every statement of intention as to the decision making process;[89]

   (iii)In this case, Mr Paterson had not suffered any practical injustice.  It is not a breach of natural justice to deny a party a further opportunity to repeat what has already been said, or to advance the same argument differently or more emphatically.[90]  In this case, no new matter of substance was raised in the ex parte communications, to which Mr Paterson had not already had an opportunity to respond;

   (iv)The ex parte communications had three purposes: to raise concerns about the delay in a decision on the s 111A Application; to set out Leopard's claim that it was denied procedural fairness by the Department; and to advance Leopard's application to the Minister to refuse the Paterson Application and the other applications by providing background, and a clear explanation of the history of the matter. In the latter respect, the principal points of substance were that Leopard had undertaken significant exploration and expenditure on the Land, and Leopard's failure to seek an extension of the exploration licence came about by a misunderstanding and as a result of advice from the Department. These were the same points advanced by Leopard in its submissions during the Departmental process, to which Mr Paterson responded. In other words, Leopard 'did not raise any new material matters adverse to the interests of Paterson to which he was not given an opportunity to respond during the Departmental submission procedure'.[91]

   (v)Other information conveyed in the ex parte communications ‑ such as statements the Leopard's board and shareholders were frustrated at the loss of the exploration licence ‑ had either been addressed by Mr Paterson, or was, in any event, 'hardly information that is credible, relevant and significant to the Minister's decision';[92]

   (vi)Mr Paterson was not denied natural justice merely as a result of the meeting on 27 September 2016.  The notes of the meeting held on 27 September 2016 'are entirely consistent with the submissions made by [Leopard] in the Departmental process to which Paterson responded, and the submissions [Leopard] repeated in its written communications with the Minister's office'. 

   (vii)The briefing note does not contain any 'trace of involvement by the Minister's advisors, against which Paterson asks the Court to draw inferences concerning their conduct in order to infect the Minister's decision'.[93]  Mr Paterson has not produced any evidence to support an inference about the Minister's consideration of Leopard's ex parte communications.  In the circumstances, it is not open to the Court to draw inferences about the Minister's consideration of the ex parte communications.  There is no basis for the drawing of a Jones v Dunkel inference in this case.

The Minister breached the fair hearing rule in that he failed to provide Mr Paterson with the opportunity to respond to information received in the course of the ex parte communications

[88] Other Party's submissions [1].

[89] Counsel relied on Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 [24], [25] (Gleeson CJ).

[90] Counsel relied on Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 [149] (Callinan J) and Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [355] (Buss JA).

[91] Other Party's submissions [16].

[92] Other Party's submissions [21].

[93] Other Party's submissions [34].

1. In my view, the Minister failed to afford procedural fairness to Mr Paterson in that he failed to give Mr Paterson the opportunity to respond to new matters raised by the Leopard officer in the course of the ex parte communications.

2. Before turning to explain my reasons for that conclusion in more detail, it is convenient to begin by dealing with the question whether it can be inferred that the matters discussed in the ex parte communications between the Leopard officer and the Minister's Advisors were relayed to the Minister for the purposes of his making the Decision.  In my view, that inference can be drawn in the present case, for the following reasons.  First, the Advisors who met with the Leopard officer were described in the documents in evidence as Principal Policy Advisers to the Minister, who worked in the office of the Minister.[94]  There was no evidence to suggest that those persons were officers of the Department.  Secondly, the ex parte communications sent by Hunt and Humphry in the letter of 30 June 2016, and in an email from the Leopard officer to the Minister's office on 2 September 2016, had requested a meeting with the Minister himself.  The meeting was organised in response to that request.  In an email sent by the Minister's appointments secretary, on 16 September 2016, the Leopard officer was advised that while the Minister was unable to meet, the Minister offered a meeting between his Advisors and the Leopard officer.[95]  Clearly, the Advisors, acting on the Minister's behalf, were to meet with the Leopard officer.  Thirdly, it is apparent from the email communications that the Leopard officer sought to convey information to the Minister, through the Advisors, for the Minister's consideration in making the Decision.  Fourthly, it is apparent that information, including documents, was provided to the Advisors, and they indicated that they were 'following it up'.  It is difficult to see how or why any 'follow up' might have occurred other than by the involvement of the Minister.  The briefing note provided by the Acting Director General did not make any reference to the ex parte communications (most of which occurred after the briefing note was prepared).  In other words, there is no evidence that such 'follow up' as occurred involved the Department. 

   [94] See, eg, first Paterson affidavit, annexures AGP14 and AGP16.

   [95] First Paterson affidavit, annexure AGP16.

3. In my view, in all of these circumstances, it is inconceivable that the two Advisors would have met with the Leopard officer, and received information from that person, and not conveyed that information to the Minister in connection with the Decision that he was required to make.  In the balance of these reasons, for convenience, I will simply refer to the ex parte communications as having been between the Minister and Leopard, on the basis that the communications were with the Minister's Advisors, acting on his behalf, and by inference, that those Advisors conveyed the information they received to the Minister. 

4. I turn next to Mr Paterson's contention that by failing to provide Mr Paterson with notice of the meeting on 27 September 2016, and in failing to permit Mr Paterson to attend that meeting, the Minister denied a fair hearing to Mr Paterson. I do not accept that submission. The fact that the decision maker is the Minister, rather than the mining warden (for example) militates against that conclusion. Further, when a hearing for the purpose of receiving evidence is required, the Mining Act makes that clear. Nothing in s 111A itself requires the Minister to hold a hearing to receive oral submissions from parties interested in a decision under that section. However, as I explain below, if the Minister receives information – whether in writing, or orally - which is credible, relevant and significant to a decision he is required to make under s 111A, and which he proposes to take into account, he will be obliged to advise any interested party of the substance of that information, and provide that party with the opportunity to respond to it.

5. Before dealing with that issue further, it is convenient to deal, briefly, with Mr Paterson's contention that because the ex parte communications constituted a departure from the process the Department had adopted for dealing with s 111A applications, that that necessarily constituted a denial of procedural fairness to Mr Paterson. This was certainly a case where the Department had very clearly specified that a particular process would be adopted for receiving submissions from interested parties, and providing those parties with the opportunity to comment on the submissions of other parties. There are good practical reasons for observing such a process. At the least, it avoids the very arguments raised in this case about breaches of procedural fairness. However, it is unnecessary to determine whether the failure to observe the process outlined by the Department, of itself, resulted in a denial of procedural fairness to Mr Paterson, because the departure from that process in this case had the consequence that Mr Paterson was not afforded the opportunity to respond to new information raised by Leopard which was credible, relevant and significant for the purposes of a decision under s 111A and which included material adverse to Mr Paterson. I turn to explain why that was so.

6. The ex parte communications resulted in information being provided by the Leopard officer to the Minister.  I am unable to accept the submission of counsel for CIOL (at [73(iv)] above) that the ex parte communications were confined to three points, which were the same as those advanced in Leopard's previous submissions to the Department.

7. In broad terms, the evidence of the ex parte communications which was before the Court[96] reveals that the following matters were conveyed to the Minister: 

   [96] Namely, the letter from Hunt and Humphry to the Minister dated 30 June 2016, the emails between the Leopard officer and the Minister's principal policy advisers, and the notes of the meeting which occurred on 27 September 2016.

   •the circumstances in which Leopard's exploration licence had expired, without an application to extend its term having been made;

   •Leopard's considerable expenditure on exploration activities during the term of its licence, and during a period when many other explorers were not meeting their exploration expenditure requirements, and which was said to demonstrate a real commitment to exploration on Leopard's part;

   •Leopard's view that the process adopted by the Department for dealing with the s 111A application had denied procedural fairness to Leopard;

   •Leopard's response to the submissions made in respect of the Paterson Application, and the other applications, including its contention that many of those submissions were factually incorrect in certain respects;

   •Leopard's characterisation of the other parties who had made the other applications, including Mr Paterson, as 'opportunistic parties [who] have taken the opportunity to take away the asset from the [Leopard] shareholders';

   •the long delay in the making of the Decision, and the uncertainty and frustration that that was creating for Leopard's board and its shareholders;

   •the fact that Leopard had paid the rent on the exploration licence, and that that had not been refunded despite the very lengthy delay;

   •the contention that s 111A of the Mining Act existed to enable the Minister to remedy an injustice which would arise from the strict application of the processes of the Act, and that the power had been used for this purpose in the past, and that that precedent warranted the use of the power for the same purpose in this case; and

   •why considerations of fairness required that the Minister refuse the Paterson Application and the other applications pursuant to s 111A and enable the Leopard Application to proceed for determination.

8. There is no doubt that most of that information was the same, or similar, to that which had already been provided by Leopard to the Department (and in turn conveyed to the other parties).  However, it is also clear that not all of the material provided had been previously raised.  That material included:

   •the adverse implications for Leopard of the long delay in making the Decision, including the financial implications of the rent not having been refunded;

   •Leopard's characterisation of the other applicants for an exploration licence as 'opportunistic' which had a negative connotation associated with a lack of genuine intent on their part (as opposed to financial capacity) to pursue exploration activities on the Land;

   •the purpose behind s 111A and the circumstances in which it had been used in the past; and

   •(to a lesser extent, as these had already been raised, at least in part) general considerations of fairness supporting the refusal of the other applications under s 111A, so as to permit Leopard's Applications to proceed to determination.

9. At first blush, there does not appear to be any reason for concluding that such material was not 'relevant, credible and significant' for a decision under s 111A. In the present case, it is not possible to say whether the Minister took these matters into account. That is because the Minister did not provide any reasons for the Decision, and the briefing note preceded some of the ex parte communications. However, it is not necessary for Mr Paterson to show that the material played a part in influencing the Minister's decision.[97]  It suffices that the new material cannot be described as material that obviously could be dismissed from further consideration by the Minister. 

   [97] ApplicantVEAL of 2002 v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 [18] ‑ [19] (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ).

10. Finally, for completeness, I should say that in assessing whether the ex parte communications gave rise to unfairness, it is not possible to ascertain with certainty what matters were raised with the Minister's Advisors.  That is because the evidence before the Court as to what information was provided to the Advisors is incomplete.  As I have already mentioned, it is apparent that 'additional correspondence' was provided by the Leopard officer, but there is nothing to indicate what that was.  In addition, while a handwritten note of the meeting on 27 September 2016 was in evidence, there was no evidence to indicate whether that note sets out, accurately, the entirety of the discussion which took place.  However, as I have concluded, on the basis of the existing evidence, that some new relevant, credible and significant information was raised in the ex parte communications, it is unnecessary to consider further whether any other information may have been provided. 

Did the ex parte communications give rise to an apprehension of bias on the part of the Minister in relation to the Decision?

1. The submissions of counsel for Mr Paterson were, in summary, as follows:

   (i)The failure of the Minister’s office to notify Mr Paterson of the ex parte communications, or to provide him with the opportunity to attend the meeting on 27 September 2016, created 'an inevitable appearance of bias';

   (ii)In light of the ex parte communications, which occurred outside the procedure adopted by the Department prior to the Minister’s decision, a fair minded lay observer may reasonably apprehend that the Minister might not have brought an impartial mind to making the Decision.

1. The submissions of counsel for CIOL were, in summary, as follows:

   (i)The content of the test for apprehended bias for ministers is different from that for judges.  A minister is not required to avoid conduct that would expose a judge to a charge of apprehended bias ‑ that is, of having less than actual and manifest independence and impartiality.

   (ii)In so far as the meeting on 27 September 2016 is concerned, Mr Paterson’s complaint is, in essence, simply that there was a meeting.  That cannot found a claim to a denial of natural justice, as 'there is nothing wrong about an industry participant meeting with representatives of the minister assigned the relevant portfolio'.

2. My conclusion that the Minister failed to afford procedural fairness to Mr Paterson by failing to advise him of the new material raised in the ex parte communications and to provide him with the opportunity to respond means that the Decision must be quashed. In view of that conclusion, it is not necessary to express a view on the alternative basis on which Mr Paterson contended that the Minister failed to afford procedural fairness, namely the question of apprehended bias. In the circumstances, it is also unnecessary to consider that question because the person who occupied the office of the Minister no longer deals with the mines and petroleum portfolio (there having been a change of government subsequent to the Decision), and consequently, no question arises of whether the application under s 111A of the Mining Act can be determined by the same decision maker once the Decision is quashed.

1. Relief: Is there any reason why the Decision should not be quashed? 

1. A failure to afford procedural fairness will ordinarily warrant the grant of prerogative relief to quash a decision made in denial of procedural fairness.  However, because prerogative relief is discretionary, there is some authority for the proposition that relief may be refused in a case where it is established that compliance with the requirements of procedural fairness could have made no difference to the outcome of the proceeding.[98]

   [98] Stead v State Government Insurance Commission (1986) 161 CLR 141, 145 (Mason, Wilson, Brennan, Deane & Dawson JJ); Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 [4] (Gleeson CJ), [58] ‑ [59] (Gaudron & Gummow JJ), [87] (McHugh J), [131] (Kirby J), [172] (Hayne J) and [211] (Callinan J).

2. The submissions of counsel for Mr Paterson were, in summary, as follows:

   (i)Once a breach of natural justice is made out, an applicant is entitled to relief unless the Court is persuaded that the breach could not have had any bearing on the outcome;

   (ii)In the circumstances, it is not possible to say that the Decision would inevitably have been the same if Mr Paterson and the other parties had been invited to the meeting on 27 September 2016, or given the opportunity to respond to the ex parte communications.  There is a clear possibility that but for the breaches of procedural fairness, a different decision may have been reached by the Minister.[99]

   [99] Counsel relied on Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; and Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, 342 (Gageler & Gordon JJ).

3. Counsel for CIOL submitted that because the ex parte communications only involved matters about which Mr Paterson had already commented, it can be concluded that no different decision would have been reached had Mr Paterson had the opportunity to respond to them.  In so far as Mr Paterson contended that had he been given the opportunity to make additional submissions, those submissions would have included matters such as a summary of his capability to explore the Land, counsel for CIOL submitted that Mr Paterson could have provided that information during the Departmental submission process, and relief should not be awarded in those circumstances.

4. I am unable to accept that submission.  For the reasons already outlined, relevant, credible and significant new information was provided to the Minister in the course of the ex parte communications.  That was not information which could obviously have been ignored or put to one side by the Minister.  The failure to provide Mr Paterson with the opportunity to respond to the material which Leopard had not previously raised gave rise to a practical injustice.  Counsel for Mr Paterson made clear that, among other things, had he had an opportunity, he would have refuted the suggestion that he was an 'opportunistic' applicant by providing (more) information to demonstrate his genuine intention to engage in exploration activities on the Land.  That was not something which was previously in issue.

5. In my view, this is not a case where it can be said that the opportunity to respond to the new material could not have made a difference to the outcome of the Minister's decision under s 111A of the Mining Act.

6. It was not suggested that there was any other basis on which relief should be refused.  The Decision should be quashed.

7. Counsel should confer about the orders which should be made.  In the first instance, it would appear sufficient to quash the Decision without the formal step of issuing a writ of certiorari (which would command the production of the original of the Decision into Court for the purpose of its being quashed).  Counsel should also confer about any costs order which should be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

LF
ASSOCIATE TO THE HONOURABLE JUSTICE PRITCHARD

28 JUNE 2018