Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd
[2016] WASCA 50
•18 MARCH 2016
WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [2016] WASCA 50
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 50 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:107/2015 | 1 FEBRUARY 2016 | |
| Coram: | McLURE P NEWNES JA CORBOY J | 18/03/16 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on ground 3 Leave to appeal refused on grounds 1, 2, 4, 5, 6 and 7 Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | WRIGHT PROSPECTING PTY LTD HANCOCK PROSPECTING PTY LTD HOPE DOWNS IRON ORE PTY LTD HAMERSLEY WA PTY LTD |
Catchwords: | Practice and procedure Interlocutory appeal from strike out of pleading Whether contract plea arguable Scope and effect of Constitution Act 1890 (Imp) Whether power in Mining Act 1978 (WA) to enter into contract |
Legislation: | Constitution Act 1890 (Imp), s 3 Mining Act 1904 (WA), s 276, s 277 Mining Act 1978 (WA), s 10, s 11, s 19, s 20, s 59, s 75 Mining Act Amendment Act 1971 (WA) |
Case References: | Australian Anglo American Prospecting Ltd v CRA Exploration Pty Ltd [1981] WAR 97 Commonwealth of Australia v State of Western Australia (1999) 196 CLR 392 Hubbard Association of Scientologists International v Attorney-General (Vic) [1976] VR 119 L'Huillier v State of Victoria [1996] 2 VR 465 New South Wales v Bardolph (1934) 52 CLR 455 Nicholas v Western Australia [1972] WAR 168 Tipperary Developments Pty Ltd v The State of Western Australia (2009) 38 WAR 488 Williams v Attorney-General (NSW) (1913) 16 CLR 404 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [2016] WASCA 50 CORAM : McLURE P
- NEWNES JA
CORBOY J
- Appellant
AND
HANCOCK PROSPECTING PTY LTD
First respondent
HOPE DOWNS IRON ORE PTY LTD
Second respondent
HAMERSLEY WA PTY LTD
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : LE MIERE J
Citation : WRIGHT PROSPECTING PTY LTD -v- HANCOCK PROSPECTING PTY LTD [No 3] [2015] WASC 231
File No : CIV 3041 of 2010, CIV 2671 of 2012
Catchwords:
Practice and procedure - Interlocutory appeal from strike out of pleading - Whether contract plea arguable - Scope and effect of Constitution Act 1890 (Imp) - Whether power in Mining Act 1978 (WA) to enter into contract
Legislation:
Constitution Act 1890 (Imp), s 3
Mining Act 1904 (WA), s 276, s 277
Mining Act 1978 (WA), s 10, s 11, s 19, s 20, s 59, s 75
Mining Act Amendment Act 1971 (WA)
Result:
Leave to appeal granted on ground 3
Leave to appeal refused on grounds 1, 2, 4, 5, 6 and 7
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr A J Myers QC Mr J Rowland QC & Mr A T Broadfoot
First respondent : Mr P J Brereton SC & Mr C N Bova & Mr T E O'Brien
Second respondent : Mr P J Brereton SC & Mr C N Bova & Mr T E O'Brien
Third Respondent : No appearance
Solicitors:
Appellant : Clayton Utz
First respondent : Jackson McDonald
Second respondent : Jackson McDonald
Third Respondent : No appearance
Case(s) referred to in judgment(s):
Australian Anglo American Prospecting Ltd v CRA Exploration Pty Ltd [1981] WAR 97
Commonwealth of Australia v State of Western Australia (1999) 196 CLR 392
Hubbard Association of Scientologists International v Attorney-General (Vic) [1976] VR 119
L'Huillier v State of Victoria [1996] 2 VR 465
New South Wales v Bardolph (1934) 52 CLR 455
Nicholas v Western Australia [1972] WAR 168
Tipperary Developments Pty Ltd v The State of Western Australia (2009) 38 WAR 488
Williams v Attorney-General (NSW) (1913) 16 CLR 404
1 McLURE P: This is an application for leave to appeal and, if leave is granted, to appeal from the interlocutory decision of Le Miere J striking out pars 40, 41, 42 and related paragraphs (the contract plea) in the appellant's Further Amended Substituted Statement of Claim filed on 22 May 2015 (the May 2015 statement of claim).
2 The strike out application (heard on 1 February 2015) and the decision the subject of this appeal (delivered on 30 June 2015) related to an earlier version of the statement of claim dated 11 August 2014 (the Statement of Claim). The paragraphs struck out in the May 2015 statement of claim correspond with the paragraphs the subject of the successful strike out application.
3 At the material times the appellant/plaintiff, Wright Prospecting Pty Ltd (WPPL) and the first respondent/first defendant, Hancock Prospecting Pty Ltd (HPPL) carried on business in partnership under the firm name Hancock & Wright (the Partnership). The action, which has been consolidated, concerns WPPL's claim to entitlements in relation to mining tenements acquired by HPPL or its subsidiaries known as Hope Downs and East Angelas.
4 HPPL and Hope Downs Iron Ore Pty Ltd applied to strike out the contract plea on the basis that the pleading was technically defective, did not disclose a reasonable cause of action and was an abuse of process.
5 The contract plea depends primarily on two letters. The first is a letter dated 20 February 1984 from the then Premier of Western Australia, Mr Brian Burke, to Mr Lang Hancock (the Premier's Letter). The second is a letter dated 3 April 1985 from the then Minister for Minerals and Energy, Mr D Parker, to Mr Hancock (the Minister's Letter).
6 The Premier's Letter states, relevantly:
In relation to Ministerial Reserves in which you expressed interest, namely, TR5072 and TR6446, the Minister for Minerals and Energy has advised me that he is prepared to hold these Reserves for you, providing any access to you which is required including access for exploration, samples etc. on the understanding that once a firm proposal is received for the development of a mining operation, these Reserves will be granted to you for inclusion in any development agreement area.
This means you will be able to assure your potential clients of long term future continuity of supply.
We are particularly interested in your pursuing those new markets in which the existing producers are not competitors.
7 TR5072 and TR6446 the subject of the Premier's Letter were temporary reserves (TRs) referred to in the Statement of Claim as Hope Downs 1 Reserve and Hope Downs 3 Reserve, respectively. The Minister's Letter's letter relevantly states:
In his letter of 20 February 1984 the Premier advised of my decision to allow Hancock Prospecting Ltd access to the Ministerial Reserves TR5072 and TR6446. The Premier stated that access to these Reserves would be provided for:
'exploration, samples etc. on the understanding that once a firm proposal is received for the development of a mining operation these Reserves will be granted to you for inclusion in any development area.'
On this basis, should such reserves become necessary for any firm development proposal, I would be prepared to grant Hancock Prospecting Ltd access to the following Temporary Reserves:
4189, 4190, 4191, 4886, 4268, 4503
Such access will enable you to indicate continuity of supply to potential customers.
The Government supports any proposals for the establishment of a new iron ore project in the Pilbara which make use of excess capacity and existing infrastructure.
8 Temporary reserves 4189, 4190, 4191, 4268 and 4503 listed in the Minister's Letter are referred to in the Statement of Claim as the East Angelas Reserves. Temporary Reserve 4886 is referred to as the Hope Downs 3 Reserve.
9 These letters were the foundation for an earlier pleaded claim by WPPL that the Minister's Letter conferred on HPPL, for and on behalf of the Partnership, a future right to exploit the East Angelas Reserves, which included the right to apply for and obtain exploration licences over that land. This future right was defined in the pleading as the 'Exploitation Right'. Le Miere J struck out that plea on the following basis: the Exploitation Right was the conferral by the Minister of the future right to exploit the area; WPPL did not claim that the Minister had any statutory power to confer such a right; and the Minister had no executive power to confer such a right, relying on Commonwealth of Australia v State of Western Australia (1999) 196 CLR 392, Nicholas v Western Australia [1972] WAR 168 and Australian Anglo American Prospecting Ltd v CRA Exploration Pty Ltd [1981] WAR 97. There was no appeal from that decision.
10 The background to the contract plea in the Statement of Claim (pleaded in pars 24 to 39) is to the following effect. In 1969, DFD Rhodes Pty Ltd, JD Nicholas and WG Nicholas (the Holders) acquired rights of occupancy in respect of the East Angelas Reserves pursuant to s 276 of the Mining Act 1904 (WA) (the 1904 Mining Act). The Holders held rights of occupancy in respect of the East Angelas Reserves as part of a larger parcel of temporary reserves which included the Hope Downs 1 Reserve and Hope Downs 3 Reserve.
11 In May 1969, the Partnership entered into an exclusive rights agreement with the Holders relating to a number of temporary reserves, including the East Angelas Reserves, pursuant to which the Holders granted to the Partnership an exclusive right to the East Angelas Reserves. By deed entered into in April 1971, JD Nicholas and WG Nicholas declared that they held all their right, title and interest in, inter alia, Hope Downs 1 Reserve and Hope Downs 3 Reserve upon trust for the Partnership.
12 In August 1971, the State informed the Partnership that it had decided not to renew rights of occupancy over, inter alia, the East Angelas Reserves and Hope Downs 3 Reserve (the terms of which had expired), and not to issue new rights of occupancy to the Holders, HPPL or WPPL. The Holders, HPPL and WPPL commenced Supreme Court proceedings against the State claiming an existing equitable interest in the East Angelas Reserves. The claim was unsuccessful: Nicholas.
13 Between September 1971 and September 1974 a third party (ASMC) held rights of occupancy in respect of the East Angelas Reserves. Between November 1971 and April 1985 the Partnership sought from the State the return to it of, or the grant of new, rights of occupancy over the East Angelas Reserves, Hope Downs 1 Reserve and Hope Downs 3 Reserve on the basis, inter alia, that the Partnership had applied significant expenditure in exploring and conducting feasibility studies thereon and had proposed a project to develop the area together with third parties.
14 The contract plea in par 40 of the Statement of Claim was in the following terms:
As a consequence of the matters pleaded in paragraph 24 to 39 ... by the [Premier's Letter] and the [Minister's Letter] the Premier and the Minister for and on behalf of the State of Western Australia:
40.1 granted the Partnership, or HPPL for and on behalf of the Partnership, access to Ministerial Reserves TR5072 (Hope Downs 1 Reserve) and TR6446 (Hope Downs 2 Reserve) for the purpose of exploration; and
40.2 promised to hold the Hope Downs and East Angelas Reserves for the Partnership or for HPPL, for and on behalf of the Partnership;
on the understanding that once a firm proposal was received for a mining operation the Ministerial Reserves would be granted to the Partnership should such Reserves be necessary for such development and to provide continuity of supply.
15 In May 1985, HPPL applied for exploration licence (EL) 47/243) over part of Hope Downs 1 Reserve, which was granted in March 1986. In December 1986 HPPL applied for EL 47/308 and EL 47/309 over the balance of the land formerly comprising Hope Downs 1 Reserve and the Hope Downs 3 Reserve, which were granted in April 1988. In December 1988 HPPL applied for EL's 47/427, 47/428, 47/429 and 47/430 comprising the land formerly the subject of the East Angelas Reserves, which were granted in February 1989.
The primary judge's decision
16 The Mining Act 1978 (WA) (the 1978 Mining Act) commenced on 1 January 1982 and repealed the 1904 Mining Act. The proceedings below were conducted on the (erroneous) assumption that the relevant statutory framework was confined to the 1978 Mining Act. The focus was on s 19 of the 1978 Mining Act which (at the material times) empowered the Minister to exempt any Crown land not the subject of a mining tenement from, inter alia, mining (s 19(1)). While the land was so exempted, it ceased to be subject to the operation of the 1978 Mining Act (s 19(3)). However, the Minister may, while any Crown land is exempted under s 19(1), call in such manner as he determines for applications for the grant of such mining tenements as he determines in respect of that Crown land or a part thereof (s 19(4)). A person applying to the Minister for the grant of such mining tenements shall do so in such manner as the Minister directs (s 19(5)). On receiving an application under s 19(5), the Minister may grant the mining tenement applied for or another mining tenement subject to such terms and conditions as he thinks fit. The 1978 Mining Act applies to a mining tenement granted under s 19(6) as if that mining tenement had been granted under pt IV of the 1978 Mining Act (s 19)(7)).
17 It was not WPPL's case before the primary judge that the Premier's Letter and/or the Minister's Letter were an exercise of the Minister's power under s 19 of the 1978 Mining Act. WPPL's case was that the letters evidence a binding agreement between the State and the Partnership which agreement was made in the exercise of the executive power of the Crown [18].
18 The primary judge rejected WPPL's claim that any agreement constituted or evidenced by the Premier's Letter and/or the Minister's Letter was within the scope of the executive power of the Crown. He held that neither the Premier nor the Minister has any such executive power, relying primarily on Nicholas, in which the Full Court held that, in this State, rights or interests in respect of minerals can only be created by statute pursuant to s 3 of the Constitution Act 1890 (Imp) (the 1890 Constitution Act).
19 Although WPPL did not rely on s 19 of the 1978 Mining Act as the source of the Minister's power, the primary judge addressed that subject. However, his purpose in doing so was to complete the s 3 analysis. He said:
The Minister's letter could not be the exercise of the power conferred on him by Mining Act s 19(6). The Minister can only grant a mining tenement to a person under s 19(6) after the Minister has exempted the land under s 19(1), the Minister has called for applications for the grant of such mining tenements in accordance with s 19(4) and the person has applied for the grant of a mining tenement in accordance with s 19(5). A contractual promise by the Minister to grant Ministerial Reserves to the Partnership was beyond the power of the Minister. Any purported contract to do so could not be enforced by the courts and was void [24].
20 The primary judge also determined the technical pleading point. He held that par 40 did not clearly plead an agreement; it was not clear whether it pleaded one or two agreements; the identity of the contractual parties was unclear; and the terms of the agreement were ambiguous and not sufficiently certain.
21 As WPPL accepted that the contract plea in par 40 was the foundation for the pleas in pars 41 and 42, the primary judge struck out those paragraphs as well as other paragraphs dependent upon the plea of an agreement or legally binding promise. He also granted leave to WPPL to file and serve any proposed further amended substituted statement of claim by 13 July 2015. It is clear from the primary judge's reasons as a whole that the grant of leave did not entitle WPPL to plead a further agreement or legally binding promise based on the Premier's Letter and/or Minister's Letter, having held in effect that they could not support a reasonably arguable claim of a contract or legally binding promise. That understanding is reflected in WPPL's further amended statement of claim filed on 14 August 2015.
Grounds of appeal
22 Grounds 1 and 7 are related. Ground 1 claims the primary judge erred in law in concluding that it was beyond the power of the Minister to make any contractual promise to grant Ministerial Reserves under s 19 of the 1978 Mining Act and that any purported contract by the Minister to grant a mining tenement was void. Ground 7 contends, in the alternative, that the primary judge erred in law in applying the wrong test in concluding that the Minister's Letter could not have been an exercise of the power conferred by s 19 of the 1978 Mining Act. It is unnecessary to address these grounds in view of the express concession in the appeal by senior counsel for WPPL that it does not rely on s 19 of the 1978 Mining Act as the source of the power to support the pleaded agreement. The concession was correctly made.
23 Grounds 2, 4, 5 and 6 relate to the question whether the Minister (alternatively the Premier) had the power to enter into a contract that binds the future exercise of a statutory discretion. The errors of law are identified as 'a failure to recognise' that:
(a) a contract or legally binding promise affecting the future exercise of various discretions to grant tenements under the 1978 Mining Act (including s 19, s 20, s 59(4) and s 75(4)) is not necessarily a contract the effect of which is to fetter impermissibly the future exercise of the discretion to grant a tenement (ground 2);
(b) the issue of whether a contract or promise purports impermissibly to fetter a future exercise of discretion depends upon the particular terms of the contract found to exist after considering all of the relevant evidence and the meaning to be given to particular terms, as a result of which it was inappropriate for conclusive determination in an interlocutory pleading challenge (ground 4);
(c) ordinarily it will be an implied term of a contract capable of affecting the future exercise of a discretionary power that the repository of the power reserves the right not to perform part or all of the contract if such performance would be inconsistent with his or her common law or statutory duties, but that does not render the contract void (ground 5);
(d) a contract will not fetter the future exercise of discretions under the 1978 Mining Act where there are no mandatory considerations; contractual performance would facilitate the exercise of the discretion; and performance of the contract would be consistent with implementation of the statutory purpose (ground 6).
24 On the broader subject of the power of the Minister or the Premier to enter into the contract, ground of appeal 3 is in terms that the primary judge:
erred in law in failing to recognise that either or both of the Minister (in the exercise of executive power or the powers conferred under the [1978 Mining Act], properly construed, including section 10) or alternatively the Premier (in exercise of executive power on behalf of the State) has power to enter into contracts and make legally binding promises which may affect the future exercise of the various discretions to grant tenements conferred in the [1978 Mining Act], provided that such contracts or promises do not fetter impermissibly the future exercise of those discretions.
25 The written submissions in support of the grounds of appeal do not follow the orthodox approach of expressly identifying the written submissions relied on in support of each ground.
26 WPPL did not challenge the trial judge's finding that its contract plea was defective. It proceeded on the basis that, if the appeal is allowed, it should be permitted to replead the agreement. The proper course was for the appellant to annex to his written submissions a proposed amended contract plea to provide a framework for the determination of the legal issues. Senior counsel for WPPL addressed this omission by outlining in oral submissions the proposed amended contract plea, starting with the identity of the parties to the contract as follows:
The Minister of Mines. Alternatively, the Premier and the Partners, HPPL and WPPL, or alternatively [HPPL] on behalf of the Partnership. That upon HPPL and WPPL undertaking exploration work and allied activities upon Hope Downs 1 and Hope Downs 2 (sic) and making a firm development proposal reasonably satisfactory to the Minister a mining lease or leases of that land and Hope Downs 3 and the East Angelas Reserves would be granted to HPPL and WPPL by the State.
If it be necessary for the validity of the contract then we would agree that there should be an implied term that the Minister would be entitled not to grant the mining lease if to do so would be inconsistent with the statutory or common law duties at the time when he comes to grant a mining lease (ts 11 - 12).
- For the implied term, WPPL relies on the reasons of Charles and Callaway JJA in L'Huillier v State of Victoria [1996] 2 VR 465.
The statutory framework
27 Section 3 of the 1890 Constitution Act provides:
The entire management and control of the waste lands of the Crown in the colony of Western Australia, and of the proceeds of the sale, letting, and disposal thereof, including all royalties, mines, and minerals, shall be vested in the legislature of that colony.
28 The expression 'waste lands' in s 3 means 'Crown land', being the lands of which the Crown became the absolute owner on taking possession of the colony and which had not been made the subject of any proprietary right on the part of any citizen: Williams v Attorney-General (NSW) (1913) 16 CLR 404, 428. The express statutory control of the waste lands was transferred to the colony not as a matter of title, but as a matter of governmental function; it was given, not to the King in his executive capacity, but to the legislature: Williams (456).
29 Section 3 of the 1890 Constitution Act continues to apply in this jurisdiction: Commonwealth v State of Western Australia; Nicholas; Australian Anglo American Prospecting.
30 The East Angelas Reserves, the Hope Downs 1 Reserve and the Hope Downs 3 Reserve were temporary reserves under s 276 of the 1904 Mining Act. That section relevantly provided:
The Minister ... may temporarily reserve any Crown land from occupation, and the Minister may at any time cancel such reservation: Provided that if such reservation is not confirmed by the Governor within twelve months, the land shall cease to be reserved.
The Minister may, with the approval of the Governor, authorise any person to temporarily occupy any such reserve on such terms as he may think fit, but subject to the provisions of [s 277].
31 Pursuant to s 277(3), a right of occupancy could be granted for a fixed period in excess of one year, but in that event the Minister was required to cause the terms and conditions relating thereto to be laid on the table of each House of Parliament within 14 days. A right of occupancy granted for any fixed period could be renewed from time to time for any term not exceeding 12 months on each occasion of renewal, but if any such renewal was granted, the terms and conditions of the renewal had to be tabled in each House of Parliament (s 277(4)).
32 As a result of an unprecedented upsurge in mining activity in this State in the 1960s, the 1904 Mining Act was amended by the Mining Act Amendment Act 1971 (WA) (the 1971 Amendment Act) to introduce a new mining tenement: the exploration licence. This was intended as an alternative to rights of occupancy of temporary reserves. It was noted in the Second Reading Speech to the 1971 Amendment Act that s 276 and s 277 did not impose statutory obligations on the holders of rights of occupancy but rather depended on the imposition of conditions by the Minister. One common condition of a right of occupancy of a temporary reserve was that contained in cl 14 of the right of occupancy of the Holders of the East Angelas Reserves, which was to the effect that when the Minister was satisfied that iron ore in payable quantities had been discovered on a reserve, he would, after negotiating with those Holders, offer to grant them mining tenements on conditions determined by him: Nicholas (171).
33 The Second Schedule of the 1978 Mining Act contains transitional provisions. Clause 1 of the transitional provisions relates to the continuation of temporary reserves and rights of occupancy issued under the 1904 Mining Act. Clause 1 relevantly provides:
(1) Any land that is temporarily reserved from occupation under the repealed Act immediately before the commencing date shall continue to be so reserved on and after that date until the reservation of the land or portion thereof is cancelled by the Minister by instrument in writing ... and while the land is so reserved (whether or not any authority to occupy, or right of occupancy of, the land granted under the repealed Act and in force in relation to the land immediately before the commencing date is in force by virtue of subclause (2) of this clause) a mining tenement shall not be granted under this Act in respect of the land without the consent in writing of the Minister.
(2) Any authority to occupy or right of occupancy of any land to which subclause (1) of this clause refers granted pursuant to the repealed Act and in force in relation to such land immediately before the commencing date, shall continue, subject to the terms and conditions upon which the authority or right was granted, to be in force on and after that date until -
(a) the date on which such authority or right would have expired under the terms and conditions upon which it was granted; or
(b) 6 months after the commencing date,
whichever date is the later.
(3) At any time before an authority to occupy or right of occupancy … the holder thereof may, if he has not then failed to comply with the terms and conditions upon which the authority or right was granted, mark out in accordance with this Act, and/or make application to the Minister for, a prospecting licence or exploration licence over the land or any portion thereof to which the authority or right relates.
(4) Notwithstanding anything in this Act, the Minister shall, on receiving an application made under subclause (3) or (5) of this clause and on being satisfied that the applicant has complied with the terms and conditions referred to in subclause (3) of this clause, grant that application on such terms and conditions as he thinks fit.
(5) An application for the renewal of an authority to occupy or right of occupancy of any land -
(a) to which subclause (1) of this clause refers; and
(b) which expired before the commencing date,
which application was pending immediately before the commencing date, shall be dealt with as if the repealed Act had not been repealed and the holder of any such authority to occupy or right of occupancy renewed as a result of that application may while that renewed authority or right is in force mark out in accordance with this Act the land the subject of that renewed authority or right, or apply to the Minister for a prospecting licence or exploration licence, or both so mark out and apply, in respect of the whole or part of the land to which that renewed authority or right relates.
35 It appears that, save in the limited circumstances in cl 1 of the transitional provisions which do not apply to the temporary reserves referred to in the Premier's Letter and the Minister's Letter, the Minister did not have power to grant new rights of occupancy over a temporary reserve under the 1904 Mining Act after the commencement of the 1978 Mining Act. Further, s 19 of the 1978 Mining Act does not empower the Minister to grant rights of occupancy to land exempted thereunder. This raises a narrower ultra vires issue standing in the way of the original contract plea and the proposed amended contract plea.
36 Moreover, to move from a temporary reserve under the 1904 Mining Act to coverage under s 19 of the 1978 Mining Act would require the Minister to first cancel the temporary reserve pursuant to cl 1(1) of the transitional provisions and then exercise his power to exempt the land under s 19(1) of the 1978 Mining Act. In order to enliven the Minister's power to grant a mining tenement over exempt land, the Minister would have to call for applications for the grant of a mining tenement under s 19(4). Upon receipt of an application made under s 19(5), the Minister has a discretion to grant the mining tenement applied for or another mining tenement under s 19(6).
37 In the appeal, WPPL relied on s 19 of the 1978 Mining Act as the means of implementing or performing the Minister's contractual obligations under the agreement, not as the source of the power to enter into a contract. WPPL relies on the power of the executive to enter into the pleaded agreement by itself or in combination with s 10 of the 1978 Mining Act which, in March/April 1984 was in the following terms:
(1) This Act shall be administered by the Minister.
(2) The Minister -
(a) shall be a corporation sole, with perpetual succession and shall have an official seal; and
(b) may, in his corporate name, acquire, hold, lease and otherwise dispose of real and personal property, and may sue and be sued in that name.
38 The two categories of power issues overlap. The logical first issue relates to the scope and effect of s 3 of the 1890 Constitution Act. For the purpose of clarity of analysis, I will assume for present purposes that, but for any limitation on executive power under s 3, it is reasonably arguable that an agent of the Crown invested with an unfettered statutory power or discretion can conditionally bind himself or herself by contract or legally binding promise to the future exercise of that power or discretion in a particular way.
39 In that context, the issue is whether the Premier or the Minister had the authority or power to enter into an agreement of that kind when it relates to the use of Crown land for or in connection with mining, as that term is defined in the 1978 Mining Act.
40 WPPL relies, in whole or in part, on the executive power of the Crown in right of the State of Western Australia as the source of the authority to contract in the absence of statutory authorisation, relying on New South Wales v Bardolph (1934) 52 CLR 455. Generally, no statutory authorisation is required for the State, by itself or by its duly authorised agents, to enter into contracts involving the ordinary course of administrating a recognised part of the government of the State: Bardolph (474 - 475, 502 - 503, 509); Tipperary Developments Pty Ltd v The State of Western Australia [2009] WASCA 126; (2009) 38 WAR 488 [88] - [94]. A State Premier has authority across the whole field of that activity: Tipperary [94].
41 However, the general rule in Bardolph's case is subject to any overriding constitutional or statutory limitation to the contrary. Section 3 of the 1890 Constitution Act is an overriding law. The expression 'the entire management and control' of Crown land in s 3 is very wide. It includes the matters the subject of the contract plea in par 40 of the Statement of Claim, the proposed amended contract plea and any agreement for, or in connection with, mining on Crown land. The control and management of Crown land is, by s 3, vested solely in the legislative arm of the government of the State. The remaining question is whether the 1978 Mining Act contains a grant of power to the Minister to enter into contracts for or in connection with mining on Crown land.
Section 10 of the 1978 Mining Act
42 The only statutory source of power relied on by WPPL is s 10 of the 1978 Mining Act (set out above). The Minister, with the assistance of his Department, is responsible for the administration of the 1978 Act: s 10(1), s 11. However, the administrative role is of a machinery nature for the practical management of the statutory scheme. It does not enlarge or supplement the statutory powers and functions vested in the Minister. The same is true of s 10(2). The purpose of s 10(2) is to make the Minister a corporation sole with perpetual succession and to identify what type of things can be done by or against the Minister in his corporate name. A corporation sole is a single, separate, permanent legal entity. Ministers of the Crown are not common law corporations sole: Hubbard Association of Scientologists International v Attorney-General (Vic) [1976] VR 119.
43 Section 10(2) does not, in terms or effect, provide statutory authority to enter into contracts or make binding promises that are not within the scope of the Minister's substantive powers and discretions conferred by other provisions of the 1978 Mining Act. The question is not whether the 1978 Mining Act, or s 19 thereof, is an exhaustive code but whether that Act grants to the Minister a power to do something which would otherwise be beyond the executive power of the Crown (as distinct from authorising a nominated agent to do something that was already within the scope of the executive power of the Crown). The answer is that the 1978 Mining Act does not grant executive power to the Minister (or the Premier) to enter into binding contracts or promises for, or in connection with, mining on Crown land.
44 Accordingly, the contract the subject of the contract plea in its original and proposed amended form is ultra vires and void. Thus, ground 3 must be dismissed. As a consequence, the appeal must be dismissed.
45 In those circumstances it is unnecessary to determine whether, assuming a statutory grant of executive power to the Minister in relation to mining on Crown land, it is legally possible to enter into a contract or make a legally binding promise to exercise a statutory power or discretion in a particular way in the future. As that issue was not determined by the primary judge, I do not propose to determine it in this appeal.
Conclusion
46 I would grant leave to appeal on ground 3, refuse leave on the remaining grounds, and dismiss the appeal.
47 NEWNES JA: I agree with McLure P.
48 CORBOY J: I agree with McLure P.
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