Re the Honourable Minister for State Development and Tourism and Small Business, Mr Clive Brown MLA

[2003] WASC 125

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE THE HONOURABLE MINISTER FOR STATE DEVELOPMENT AND TOURISM AND SMALL BUSINESS, MR CLIVE BROWN MLA; EX PARTE MINES AND RESOURCES AUSTRALIA PTY LTD & ANOR [2003] WASC 125

CORAM:   EM HEENAN J

HEARD:   26 MAY 2003

DELIVERED          :   26 MAY 2003

FILE NO/S:   CIV 1987 of 2002

MATTER                :Mining Act 1978

and

Exploration Licence No 15/634

and

an application for a Writ of Certiorari and a Writ of Mandamus against the HON MINISTER FOR STATE DEVELOPMENT AND TOURISM AND SMALL BUSINESS, MR CLIVE BROWN MLA

EX PARTE

MINES AND RESOURCES AUSTRALIA PTY LTD
DIORO EXPLORATION NL
Applicants
 

FILE NO/S              :CIV 2520 of 2002

BETWEEN             :MINES AND RESOURCES AUSTRALIA PTY LTD

DIORO EXPLORATION NL
Plaintiffs

AND

GILT EDGED MINING NL
Defendant

Catchwords:

Practice and procedure - Directions - Application for consolidation of appeal and application for certiorari - Admissibility of affidavits on hearing of appeal - Directions generally - Turns on own facts

Legislation:

Nil

Result:

Application for consolidation dismissed

Category:    B

Representation:

CIV 1987 of 2002

Counsel:

Applicants:     Mr M J Buss QC & Ms K White

Intervener:     Mr N W McKerracher QC & Mr M R Gerus

Solicitors:

Applicants:     Hunt & Humphry

Intervener:     Blakiston & Crabb

CIV 2520 of 2002

Counsel:

Plaintiffs:     Mr M J Buss QC & Ms K White

Defendant:     Mr N W McKerracher QC & Mr M R Gerus

Solicitors:

Plaintiffs:     Hunt & Humphry

Defendant:     Blakiston & Crabb

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

Nil

Case(s) also cited:

Nil

1. EM HEENAN J:  I am inclined to the view, subject to any further submissions which follow as to the form of orders which I should make, to decline the application for the consolidation or joint hearing of these matters, at least at this stage of the proceedings, and to direct that the applications on the Crown side, namely, the applications for certiorari, mandamus and declaration, should proceed as already programmed for hearing by the Full Court.

2. At this stage I am disposed to direct that the questions about the admissibility of affidavit evidence can be dealt with when the proceedings are heard and determined in the Full Court.  As to the questions of issues of fact arising upon the affidavits, I see at this stage no occasion to require any earlier hearing or other method of inquiry to determine those disputes on the current state of the materials which are before the Full Court.

3. I do not wish to imply that it is necessary or probable, but it is certainly possible that the determination of the issues of fact may require some different procedure if there were to be a substantial body of evidence to be adduced by the respondent, or the party joined, beyond the materials which have already been put on affidavit or if there were to be substantial cross‑examination of the applicants' deponents on their affidavits.  But for that to occur it seems to me that there would be need for Gilt Edged Mining NL to apply for leave to cross‑examine identified deponents on particular areas and to make out a case where that was necessary, and if Gilt Edged Mining NL wishes to adduce further evidence on the hearings before the Full Court it will now be necessary to seek leave for that to be done at this late stage.  When I use the words "at this late stage" I do not wish to imply that leave should be refused but, rather, that the consequences of the application, including the consequences for the hearing, if leave were to be granted, would need to be addressed so as to ensure that the time of the Full Court will be gainfully employed.  At any such hearing to seek leave the question of whether or not issues emerging such as a lengthy cross‑examination or the dissection of issues of fact arising from further affidavits might - and I stress that it is only a possibility - incline a single Judge or the Full Court to direct that some or all of those issues thus emerging might be dealt with by a single Judge or that all of the proceedings might be dealt with by a single Judge.  However, there seems to be no occasion to contemplate such directions at this stage in the absence of further evidence being proposed by Gilt Edged Mining NL or of a defined application for cross‑examination being proposed.  So, subject to some scrutiny of the wording, I am prepared to make orders substantially in the form of the minute proposed by the applicants of 20 May.

4. The reasons for my disposition of the questions arising from this directions hearing in this fashion should emerge from a scrutiny of the exchanges which I have had with counsel during the course of this hearing but, in substance, I am satisfied that there is and remains quite a clear difference distinguishing the Full Court proceedings, on the one hand, and the civil proceedings for declarations on the other.

5. That distinction, as has been recognised in the course of submissions, is between the validity of the grant of exploration licence 15/634 in the Crown proceedings, whereas there is no attack on the validity of the grant of any exploration licence or other mining interest in the civil proceedings 1987/202.  Those latter proceedings acknowledge the validity of the grant of exploration licence 15/525 but raise questions about the duties and obligations of the grantee having regard to alleged fiduciary and joint venture obligations said to arise out of the mutual dealings of the parties over a long preceding history.  Those are rights in personam as between those parties and do not detract from the validity of the grant.

6. By contrast, the Crown proceedings pending before the Full Court do not directly involve any of the interpersonal rights of the parties except a right which, if it exists, is a right granted by statute to Mines and Resources Australia Pty Ltd to have its application for the mining licence dealt with as a matter of priority or at least for it to be heard in connection with the grant of an exploration licence which might impact on that application.  Those are rights of a different and public kind which are fit to be determined on applications for certiorari, mandamus or by a declaration of right.

7. I acknowledge that it is possible that in the eventual determination of the Crown proceedings discretionary factors might arise which would involve some examination of the mutual rights and obligations of Mines and Resources Australia Pty Ltd, Gilt Edged Mining NL, and the other participant in one or other of the joint venture obligations and that could lead into a more detailed examination of the interpersonal rights and obligations of the joint venture participants.

8. However, while I do not wish to suggest that such an examination will be unlikely or unnecessary, but rather the contrary, it will almost certainly have to be done to an extent, it seems to me that that extent in the overall proportion is modest.  There does not seem to be any reason why that cannot adequately be dealt with in the Crown proceedings, as it always is, if and when discretionary factors arise.  The fact that some attention to those discretionary factors may be necessary does not seem to me to be a sufficient reason to bring into the Crown proceedings the whole retinue of issues arising in the civil action 1987/2002.

9. I am satisfied that the issues of law arising in the Crown proceedings can be dealt with without the need to determine the proceedings in the civil action and that to bring the civil action in is likely to involve considerable expansion of the issues and significant additional delay no matter how great or active the intervention of case management methods might be.  So for those reasons I have decided to refuse the application for consolidation and to make directions as counsel proposes in the minute of 20 May subject to any submissions which the parties may wish to make.