Creasy v Hot Holdings Pty Ltd P37/1994 [1995] HCATrans 138 (5 May 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P36 of 1994

B e t w e e n -

HOT HOLDINGS PTY LTD

Applicant

and

ARIMCO MINING PTY LTD, ORESEARCH N.L., MARK GARETH CREASY and ROBERT WILMOT CREASY

Respondents

Office of the Registry

Perth No P37 of 1994

B e t w e e n -

MARK GARETH CREASY

Applicant

and

HOT HOLDINGS PTY LTD

First Respondent

ARIMCO MINING PTY LTD and

ORESEARCH N.L.

Second Respondents

MINERICHIE INVESTMENTS PTY

LTD and TROMEN PTY LTD

Third Respondents

Applications for special leave to appeal

BRENNAN CJ

TOOHEY J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 MAY 1995, AT 12.45 PM

Copyright in the High Court of Australia

__________________________

MR M.J. McCUSKER, QC: May it please the Court, I appear with my learned friend, MR MP. WORKMAN, for the applicant, Mark Creasy. (instructed by Pullinger Sanderson & Workman)

MR C.L. ZELESTIS, QC: I appear with my learned friend, MS C.J. McLURE, for Hot Holdings, which is an applicant in P36 of 1994 and respondent in P37 of 1994. (instructed by Lawton Gillon Tydde)

MR M.J. HAWKINS: I appear for the respondents Minerichie and Tromen. (instructed by Okeby & Co)

BRENNAN CJ: Yes, Mr McCusker.

MR McCUSKER: Your Honours, the essential point in this appeal is a question of the extent to which certiorari will lie in respect of a warden's decision to hold a ballot which is a prelude to the warden making a recommendation under the Mining Act 1978 to the Minister and that is the important point and, indeed, the only point which was determined by the court below negatively.

BRENNAN CJ: But it arises only on the hypothesis that there was some error on the part of the warden in doing what he did.

MR McCUSKER: That is certainly so, your Honour.

BRENNAN CJ: Does that not necessarily define itself as the starting point for the argument?

MR McCUSKER: Yes, it does, your Honour. If there is no error in the warden's decision as to which the Chief Justice, Justice Malcolm, made no observation and Justice Rowland, with whom Justice Nicholson agreed, expressed obiter an opinion which may be viewed as an opinion that the warden was wrong, but there has been no finding in the court below on the question of whether the warden's view as to the holding of a ballot was correct.

TOOHEY J: But the warden's view as to the holding of a ballot depends on the warden's view as to whether the applications were lodged at the same time or not.

MR McCUSKER: That is so, your Honour, and in that regard there are several matters. First, at page 139 of the application book there is set out the actual timing as recorded by the registrar and two of the registrar's staff of their receipt, if I could put it that way, of the various applications. As to that timing, although the warden in his reasons found that they were the times of receipt, he said, and this appears at page 88C dealing with this problem:

In my view the legislation given the initial requirements it specifies does not have to be interpreted in that way. The Warden says that she accepted the submission that the legislation as presently framed may operate arbitrarily in some cases.

That was a comment on a decision of another warden and this warden said:

With respect it seems to be that, although I accept the legislation is inherently unsatisfactory, if one takes a very narrow view of the legislation then it is more likely that arbitrary results are produced.

And went on to say:

If the expression at the same time -

that should be inverted commas -

is allowed to operate within the context of the legislation then although arbitrary results are not excluded they may be less frequent.

TOOHEY J: What I am not clear about, Mr McCusker, is whether you are asking us to grant special leave in order to resolve, as it were, procedurally whether certiorari lies in this case or whether your submission is that special leave should be granted to enable this Court to resolve the sort of questions that you have just been canvassing?

MR McCUSKER: Your Honour, this applicant would seek special leave in order to resolve the question of whether certiorari would lie in the context of section 105A of the Mining Act, but we would further seek, if special leave were granted, that the High Court also consider the other questions related to that, or rising out of it.

TOOHEY J: But the question whether there was error by the warden in relation to section 105A depends upon the earlier question, does it not?

MR McCUSKER: It certainly does, your Honour. It would be of academic interest only if this Court were to take the view that the warden were right.

BRENNAN CJ: I mean, the question of certiorari simply has not arisen without the error being established first.

MR McCUSKER: Well that, with respect, is clearly so, but although that matter was argued before the court below it expressed no concluded view on it, save in the way that I have mentioned, but said that certiorari simply would not lie because, as it considered the matter, section 105A, which conferred a right in priority to the first applicant in time to comply with initial requirements. That appears, your Honours, at page 136, the particular section.

BRENNAN CJ: Mr McCusker, is this the proposition, that this Court ought to consider the question of certiorari and then remit the matter, if in favour of your submissions, to the Full Court to continue and consider the other issues?

MR McCUSKER: That is one possible approach, your Honour, but it is one which we would prefer not to be taken because we would argue that it would be helpful if, at the time of considering certiorari, the other matters relevant to it, in particular the question of first in time, as well as the matter of lodgment with a registrar and multiple applications be determined by this Court. It would be convenient to do so because it would probably arise in the course of argument, if only tangentially.

BRENNAN CJ: It may be that you might fail in this Court in the view of one Justice because of the time question and in the view of the second, because of the ballot question; in the view of the third, on the basis of the multiple applications, and in the view of the fourth and the fifth only on the question of certiorari. That would not be a very helpful exercise of this Court's jurisdiction.

MR McCUSKER: No, I accept that, your Honour. That sometimes is the outcome of litigation of this nature. Our main argument, in any event, your Honour, on the question of certiorari, is that section 105A clearly confers a right, and a valuable right. In its terms, it is a right subject to the Act - and they are important words - in priority over every other applicant to have granted to him in respect of the land or part of it, the mining tenement to which his application relates.

The court below considered that that right, because it was subject to the Act and therefore subject to the exercise of the Minister's discretion, which is found in the earlier provisions set out in the preceding pages of the application book at pages 132 to 134 because that right was subject to the overriding discretion of the Minister, that, therefore, it was not a right of sufficient cogency or sufficient value perhaps, to form the subject of the relief of certiorari. Or, put another way, that the Minister had a wide discretion and that he was not bound by the warden's recommendation and while it is true that he is not bound by the warden's recommendation, implicit in the view of the court below is that the right and priority to have granted is no more than a right to have considered first, rather than granted, in priority.

TOOHEY J: And what do you say is the right that section 105A confers?

MR McCUSKER: Your Honour, we say it is a right to have granted in priority, subject only to questions of public interest so that the Minister will consider all of the applications which were made, but subject to his consideration of public interest matters, all other things being equal, will grant to the first in time the particular mining temement sought.

TOOHEY J: But, in your argument, why should he go beyond the first application once the Minister has decided that questions of public interest do not stand in the way of granting the particular tenement that is applied for?

MR McCUSKER: Because, your Honour, it is at least arguable that questions of public interest may militate in favour of a second or third application as against the first by reason of the relative ability of the applicants to actually carry through with the mining programme which is part of the essential requirement to be lodged at the time of the application; that is, a programme must be put forward to the registrar.

TOOHEY J: But your argument involves confining the discretion of the Minister to questions of public interest and, I assume - well, no, I suppose it confines it to that. The question of whether the applicant first in time has met the requirements of the Mining Act is another matter again.

MR McCUSKER: That is so, your Honour, yes, but because the Minister has a discretion, the court below considered that the right to have granted in priority was not such a right as fell within the ordinary principles applicable to certiorari.

GUMMOW J: Why was no declaratory relief sought in this matter? Forster v Jododex is the leading authority in this area and it is a mining case under the New South Wales legislation. There is an element of artificiality about what has happened in a way.

MR McCUSKER: There does seem to be, with respect, your Honour. I notice that Hot Holdings' application raises that question, but in fact declaratory relief was not sought. Your Honours, the reasons of Chief Justice Malcolm tend to epitomise the problem. At page 121D he referred to Ainsworth v Criminal Justice Commission, saying:

although a body making an inquiry and presenting a report or recommendations is recognised as one required to observe the rules of natural justice, it does not necessarily follow (from that recognition) that it is also amenable to certiorari.....It is in the context of natural justice or procedural fairness that the law has relevantly progressed.

GUMMOW J: It has progressed with the use of the declaratory order, too.

MR McCUSKER: Yes, it has; it certainly has.

GUMMOW J: Next time when this problem arises people will know what to seek by way of relief, one hopes.

MR McCUSKER: At page 122, although it appears to be Chief Justice Malcolm's reasons, and over to page 123, it is a continuing quotation from Ainsworth v Criminal Justice Commission.

TOOHEY J: But whether or not prerogative relief is available, it turns in part upon the nature of the right and that in turn depends upon questions of the discretion of the Minister, the range of that discretion, the correctness of the warden's decision to hold a ballot, the determination of the question whether these applications were lodged at the same time or not. It is not clear to me that any of these questions would be questions that this Court would be called upon to determine.

MR McCUSKER: None of those questions has been determined by the court below.

TOOHEY J: No, I appreciate that, but I am still not clear as to whether, notwithstanding the failure by the Full Court to deal with them, this Court would be asked to answer those questions or whether the matter would come before us on some very limited basis as to where the prerogative relief lay in this particular case.

MR McCUSKER: It could be dealt with by the Court in that limited way, your Honours.

BRENNAN CJ: Then perhaps you could tell us what is the precise relief on that basis that would be sought.

MR McCUSKER: That would be an order by this Court which quashed the decision of the court below and remitted the matter to the court below to be dealt with in accordance with the reasons of the High Court.

BRENNAN CJ: Then what precisely is the order that is sought to be quashed under the writ of certiorari?

MR McCUSKER: The original order of the warden that a ballot be held, but in the case of the applicant, Mark Creasy, the alternative order which would be sought, and that would be in the court below, would be if the ballot be held that his five applications be included in the ballot and the two applications of the respondents, Minerichie and Tromen, should be excluded from the ballot. They are the ancillary matters that I mentioned in particular of concern to this applicant. There were five, as can be seen from the list of, and timing of, the applications. Five applications lodged - that is, at page 139 - by or on behalf of Mark Creasy, and there were two applications lodged by one Johnson on behalf of, respectively, Minerichie and Tromen. The warden included the two applications of Minerichie and Tromen, notwithstanding that those applications, in our submission, were not complete applications because they did not have with them the necessary fee at the time of lodgment, the rental at the time of lodgment, and the programme that was required.

TOOHEY J: But, Mr McCusker, if you look at your orders sought in the particular matter in which you are the applicant, and which appears at pages 203 and 204 of the application book, you are seeking that the order nisi be made absolute; you are seeking that certain decisions be quashed in so far as they relate to who was first in time and the holding of the ballot. You do not go beyond that, apparently, and raise any questions that go to the range of discretion of the Minister?

MR McCUSKER: No, your Honour, we do not in the orders sought, but we had envisaged that in the course of giving its decision - if this Court were to grant special leave, in the course of giving its decision on the appeal, it would be necessary for the Court to consider the range of discretion in order to reach a conclusion as to whether certiorari would lie. The orders sought, as your Honour Justice Toohey has pointed out, in the case of this applicant extend to an order which would need to be, of course, the subject of a decision by the court below if your Honours were to grant special leave on a limited basis only.

TOOHEY J: But how could we do that and make absolute the order nisi without resolving some of these questions?

MR McCUSKER: I take your Honour's point and it could not be done without resolving these questions.

TOOHEY J: In that event we would be called upon to determine questions arising under the Mining Act on which we have not had the benefit of the decision from the court below, although some views have been expressed in the judgments of the members constituting that court.

MR McCUSKER: Yes. As I say, your Honours, the option of simply going back on the limited basis directing the court below that it was wrong in its view that it should not grant certiorari is one that does not appeal to this applicant simply because it would involve perhaps rearguing some issues.

BRENNAN CJ: It may, but I think you can be assured that the prospects of your getting special leave across the board are very limited, Mr McCusker.

MR McCUSKER: I apprehended I would not have a strong chance of doing that.

BRENNAN CJ: Is your application this? That you be granted special leave to appeal, limited to the question of whether a writ of certiorari can go from the Supreme Court of Western Australia to the mining warden in respect of the particular recommendation made by the mining warden in this case if there should be some error of law affecting the decision of the mining warden?

MR McCUSKER: We would accept that, your Honour, if the broader option does not appeal to the Court.

BRENNAN CJ: Yes. That is as far as you are likely to get it, if you get it at all, Mr McCusker.

MR McCUSKER: If at all, yes, your Honours. Would your Honours like me to expand on the argument in relation to the court's approach to certiorari?

BRENNAN CJ: Yes, in the time available to you, and perhaps with one minute beyond.

MR McCUSKER: Thank you, your Honour. The section, as I said, which is the key to this, is section 105A, which provides - and I have read it already - that there be a right in priority over every other applicant to have granted to him in respect of that land.

The Chief Justice, in referring to the provisions of section 57(1) which is at page 32, and that provides:

Subject to this Act the Minister may on the application of any person and after receiving a recommendation -

so it is the recommendation's receipt that triggers the Minister's discretion. Section 59(3) and (4) provide:

The warden shall as soon as practicable after the hearing of the application, transmit.....his report recommending the granting or refusal of the exploration licence and setting out the warden's reasons for his recommendations.

(4) On receipt of notes of evidence.....and whether the warden recommends the granting of the licence or the refusal thereof.

"The Minister may grant or refuse the exploration licence". So, there is a clear discretion granted. The court below took varying view of what that discretion involved, and those views are set out at paragraph 4.6 of this applicant's outline of submissions. Those views do lead to some doubt as to the correct approach to the Minister's discretion.

BRENNAN CJ: What has the recommendation to do with the operation of 105A?

MR McCUSKER: It goes this way, your Honour, that the right in priority to have granted in right of priority was considered to be subject to the Minister's discretion because the section 105A is expressed to be - or the right to have granted in priority is subject to the Act. So the provisions that I have referred to of sections 57 and 59, importing as they do a discretion, were considered by the Chief Justice and the other two Justices below as not carrying a sufficient legal right or valuable right or legitimate expectation so as to warrant the grant of certiorari.

BRENNAN CJ: What has the recommendation to do with 105A? Whatever the recommendation might be, your argument is 105A applies.

MR McCUSKER: That is so, your Honour, yes.

BRENNAN CJ: What does it matter what the recommendation is, on that argument?

MR McCUSKER: On that argument it does not. As long as there is a recommendation before the Minister, the Minister then has a discretion. I think that - - -

BRENNAN CJ: But you are not challenging the exercise of the Minister's discretion.

MR McCUSKER: We are not at this stage, no. The court below considered that certiorari should not lie because the Minister could ignore the recommendation and had a discretion which the court considered would be based on public interest principles as to whether or not to grant the tenement.

BRENNAN CJ: But whether or not the Minister has got a discretion, or whether that discretion is confined by 105A, is a question which arises at the stage at which the Minister is going to exercise his powers.

MR McCUSKER: Yes, it does, your Honour.

BRENNAN CJ: It is common ground, is it not, that there has to be a recommendation before the Minister can exercise his power?

MR McCUSKER: Certainly so, yes.

BRENNAN CJ: Is it common ground that it does not matter what is in the recommendation?

MR McCUSKER: Yes, I think so; certainly so far as this applicant goes is the position.

BRENNAN CJ: Then, why certiorari to the recommendation?

MR McCUSKER: It is certiorari, not to the recommendation, your Honour, but certiorari addressed to the decision of the warden to hold a ballot to determine the right and priority, and the way in which the warden has made that decision, and the manner in which he proposes to hold the ballot.

BRENNAN CJ: Where is that decision to be found?

MR McCUSKER: Reference to it is in the orders sought, of course, your Honour, at page 203, that is that the warden determine that a ballot be held. The decision itself is not confined to one discrete order but reference to it is at page 88 and he followed, having decided that there would be a ballot, at page 88 line E, it is really a matter of his reasons there where he concluded:

that compliance with the initial requirement took place at the same time.

It followed from that, and he so directed, that by reason of section 105A(3) which is set at page 137, there must be a ballot. Section 105A(3) requires in that circumstance where:

the warden is satisfied that 2 or more applicants complied with the initial requirement in relation to their applications at the same time, priority shall, unless written agreement is concluded by the applicants.....be determined by ballot conducted by the warden in open court -

So, it got to the point, your Honours, where the warden, having considered the order in which applications were made, but considered as he set out at page 88 that a narrow view ought not to be taken of the legislation and, therefore, he should take the view that all of the applications, though seconds apart, should be treated as lodged at the same time for the purpose of section 105A(3).

BRENNAN CJ: Well, it has nothing to do with the recommendation; it is a decision under 105A(3) that is the subject of certiorari.

MR McCUSKER: Quite, your Honour. Yes, I am sorry if I have misled your Honour on that. It is entirely to do with the warden's decision to hold a ballot and it is the decision to hold a ballot, coupled with the manner of holding the ballot that is in issue.

BRENNAN CJ: Yes.

MR McCUSKER: The applicant, Mark Creasy, contends that if there is to be a ballot to be held, that is if the warden's view is correct on the question of "at the same time", then his five applications should be included and that is a matter which was not dealt with in the court below. Two of the applications I have mentioned should not because they were not proper applications included in the ballot.

BRENNAN CJ: Yes.

MR McCUSKER: The inclusion of those two and the exclusion of his other applications, we say, defeats his legitimiate expectation and the court below seemed to treat the right to have granted as no more than a right to consideration.

BRENNAN CJ: Thank you, Mr McCusker.

MR McCUSKER: May it please your Honours.

BRENNAN CJ: Mr Zelestis?

MR ZELESTIS: May it please the Court, Hot Holdings supports the application for certiorari, or supports the application for special leave on the certiorari point although we would put the case slightly differently. Hot Holdings is in a slightly different position to Mr Creasy for this reason that below, Justice Rowland with whom Justice Nicholson agreed, expressed opinions on the fundamental questions of the correctness of the warden's decision which favour Hot Holdings to the extent that "at the same time" was construed as meaning just that.

Justice Rowland, in effect, observed that the findings made enabled Hot Holdings to be identified as the party who had complied first in time. What happened here was that the Full Court's view - narrow view, we would say - of the availability of certiorari represented a barrier to the Full Court dealing decisively with the questions which were at the bottom of the case. So, when your Honour the Chief Justice asks, "Has the warden been found to be in error?" then in the sense of a final determination, perhaps not. But, in the sense of two Justices of the court expressing opinions which are inconsistent with the warden's views, then the warden has been shown to be in error.

Now, the position is, in our submission, that there is a narrow question here concerning the availability of certiorari, which can and should be dealt with by the High Court, regardless of the various arguments that exist as to the effect of section 105A. Our submission is that even if the Full Court is right, as reading the right in priority under section 105A as, in effect, no more than a right to be considered first, then still what the warden must do under the Act in terms of deciding whether to hold a ballot and then to make a recommendation and a report, is a process which is amenable to certiorari.

It is true that in these instances the applications for certiorari are directed specifically to the decision to hold a ballot, but that is for the simple reason that the warden has not yet really made his report. What he has done is deliver reasons, said he is going to hold a ballot; if the ballot is held he will then make his report and recommendation. At this stage he has not really made a report or recommendation, so one cannot attack that yet. But, nevertheless, that is the core of what is sought to be done here.

In our submission, a real question of law arises concerning the circumstances in which certiorari is available, and if I may take the Court briefly to what was said in Ainsworth - - -

TOOHEY J: Just before you do, Mr Zelestis, are you saying that that question of the availability of prerogative relief arises and that this Court ought to determine that question without deciding any of the issues which give rise to the claim for prerogative relief?

MR ZELESTIS: Yes, we say that can be done. We would say that certiorari is more clearly available if our contention concerning the construction of section 105A is correct. But even if it is not correct, even if that section confers no more than a right to be considered first, which many might think is a fairly worthless right, then still certiorari lies. So, in our submission, the Court could deal with the matter on that basis.

We would, of course, want to go further if we were able to, and urge that if that position was rejected, the Court might consider the construction of section 105A; if our contention is correct, then that might allow certiorari, but on a slightly narrower basis. But as I say, we contend that there is a point here, regardless of the true construction of section 105A, certiorari did lie, and that is a point worthy of consideration by the High Court.

The point which the Full Court did not address, although the Chief Justice cited the passage from Ainsworth, the joint judgment which was not addressed, appears at page 580 at about point 8 on the page, where their Honours who joined in the joint judgment said:

It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities.

Your Honour the Chief Justice put it slightly differently and perhaps more narrowly at page 595, when referring at about point 3 to certiorari going "to quash a report" which "were to affect directly a prosecutor's rights".

Now I appreciate what is said in the context of that case, which is quite a different case here, because in Ainsworth the report was not one which had to be delivered in order to enliven the executives' discretion. It was a report which, in a sense, was gratuitous; it was requested by a Minister in circumstances in which he did not have to request it. The fundamental point to appreciate in the present case, in our submission, is that the receipt by the Minister of a report containing a recommendation from the warden is what enlivens the Minister's discretion. He has a summary power, if you like, to refuse applications in the public interest before the warden gets to them, but before an application may be granted, he must receive the warden's recommendation.

So, in our submission, this case raises a question as to the scope of certiorari and, in particular, a scope that is comprehended within the words I have read from page 580, and we would say that in a case such as this where, regardless of the nature of the right conferred by section 105A, the applicants for an exploration licence have a right to have the warden make his report and recommendation according to law; that is, according to the true construction of the Act.

If the warden departs from the Act, in our submission, an applicant has a right to a remedy. If the position were otherwise, then the whole statutory process of providing for this necessary step of a warden's report and recommendation becomes a very much diminished value, because the warden is free to make errors of law and the Minister is then put in this rather strange position which Justice Rowland puts him in of saying, "It doesn't matter very much, because presumably the Minister will get his legal advice, his own legal advice, on what the Act means and what the true facts are and presumably he'll get it right".

TOOHEY J: On that basis, what would happen in this Court? What would we do in the end?

MR ZELESTIS: Having decided that certiorari was available, it would remit the matter to the Full Court to be dealt with according to law and the Full Court would then be faced with decisions on all of the construction issues which were argued and not finally dealt with and then, in the light of those, would decide what final relief was appropriate.

TOOHEY J: But in so far as the draft notices of appeal in the application book seek to quash decisions made by the warden, you appear to be falling short of that in what you are now putting to us.

MR ZELESTIS: Yes, your Honours. That would be, with respect, our minimum position. The Court can sensibly, in our submission, deal with an appeal simply by reference to the question whether, on any view of 105A, certiorari can lie with respect to this report recommendation process.

TOOHEY J: It would be a bit odd for this Court to be deciding, without the benefit of any decision below, whether applications filed in degrees of seconds or degrees of minutes were filed at the same time.

MR ZELESTIS: Yes, I accept that, your Honour, but you have this odd situation at the moment where the Full Court has said because certiorari does not lie, we do not get to the issues which decide whether there is error by the warden. So a barrier has been erected which, in our submission, is not there. What we are effectively doing is inviting the High Court to consider whether the barrier is properly there.

TOOHEY J: It may be, as the Chief Justice indicated earlier, that your fall-back position really is your primary position, or has to be for the purposes of a grant of special leave.

MR ZELESTIS: Yes, I accept that, your Honour, that the most attractive part of the application, if any part be attractive to the High Court, will be the part which is the narrowest, and that is that, on any view of 105A, is the process of report and recommendation amenable to certiorari?

BRENNAN CJ: Not the process of report and recommendation, but the decision to hold a ballot.

MR ZELESTIS: But, in our submission, the decision to hold a ballot is by one of the kinds of steps which might take part in that process.

BRENNAN CJ: That is all that has happened so far, is it not?

MR ZELESTIS: Yes, I accept that.

BRENNAN CJ: Then if it is all that has happened, it is all that is available to be quashed.

MR ZELESTIS: Yes, but the other aspects of the process are relevant in elucidating its character and assist in deciding whether this is a process which is - - -

BRENNAN CJ: That may be so, but the point that I think you need to focus on is what is the possible relief that is available. If you were to succeed, the possible relief is that the matter could go back to the Full Court in order to consider whether certiorari should go with respect to the decision thus far made, and there is only one decision.

MR ZELESTIS: Yes, I accept that, your Honour, I accept that fully, but it is still necessary to notice that there are other features of the process of recommendation and report which are relevant to the decision whether certiorari lies with respect to the decision to hold a ballot.

BRENNAN CJ: That may be so. That is a matter for argument.

MR ZELESTIS: Yes, but even accepting what your Honour the Chief Justice has put to me, in our submission, this is still a case in which the High Court ought intervene, as I say, to consider whether the barrier which the Full Court saw as existing really does exist.

TOOHEY J: Are you out of court if we refuse special leave in the sense that have you lost the opportunity at some other stage in some other proceedings to challenge the decision of the warden in regard to the holding of the ballot?

MR ZELESTIS: Effectively we have sought to challenge it and been denied the right to challenge it. That denial has not been on the basis that the ballot has not yet been held; it has been on the basis that there is no judicial remedy by certiorari. So it is difficult to see how we could revisit the issue after the ballot is held. The way it has been dealt with, it puts the warden also in an odd position in that effectively Justice Rowland, with whom Justice Nicholson agreed, has said that there is no foundation for holding a ballot but no remedy has been granted. It is a very strange and unsatisfactory conclusion, in our respectful submission, and it is brought about by the fact that the Full Court saw itself as having its hands tied on the availability of certiorari. Those are our submissions.

BRENNAN CJ: Thank you, Mr Zelestis. The Acting Senior Registrar has provided a certificate in which she states that:

I have been informed by Mallesons Stephen Jaques, solicitors for the second respondents in this matter, that their clients do not propose to make any submissions in relation to the special leave application and there will be no appearance on behalf of Arimco Mining Pty Ltd and Oresearch NL on 5 May 1995.

Mr Hawkins?

MR HAWKINS: Thank you, your Honours, Minerichie and Tromen oppose special leave on the basis that this application for certiorari is premature. Even if certiorari did lie the administrative process should be able to traverse its due course and only when there is some finality of decision should the Court be asked to intervene. Mr Justice Toohey asked my friend, Mr Zelestis whether the applicants would be out of Court if special leave were refused. In my submission, the applicants would not be out of Court. The proper time and opportunity to bring an application for certiorari lies when the Minister exercises his decision. The ballot question is somewhat of the hair on the end of the tail wagging the dog. The Minister has a totally unfettered discretion whether or not to grant an application.

TOOHEY J: Mr Hawkins, you say he does, and that may well be right. That is not, of course, the way it was put to us by Mr McCusker.

MR HAWKINS: Yes, your Honour, if I may deal with that. The section 105A is expressed to be subject to the Act and their Honours the Chief Justice at page 111 E and Mr Justice Rowland at page 146 B to E describe the submission to the effect that the Minister's discretion was removed except under section 111A as leading to absurd results.

What would happen would be that if two applications were lodged one day apart the Minister would have an unfettered discretion whether or not to grant an application whereas if two applications were lodged simultaneously, on my friend Mr McCusker's argument, the Minister would have no discretion except if section 111A applied. The Chief Justice and his Honour Mr Justice Rowland both described that as being absurd.

His Honour Mr Justice Nicholson also dealt with the point at page 160 line D where he simply stated that his opinion was that:

the words of s 105A(1) do not provide for a right to grant but rather a right to have considered for grant (if granting is appropriate in the exercise of the Minister's unfettered discretion) in priority over every other applicant. The right which is granted by s 105A(1) is limited to the aspect of priority in that sense; the subsection does not seek to preclude or restrict the discretion of the Minister under either s 57 or s 71.

So, your Honours, I repeat the submission that section 105A applies only if the Minister has considered all applications and is unable to make up his mind between them. The section provides the means of resolving the impasse. If, to all practical intents and purposes, one application has complied with the initial requirement first, that applicant has the right of priority. If more than one applicant has complied with the initial requirement simultaneously then the result is to be determined by ballot and section 105A can sensibly be read only in the context that the Minister has decided there should be a grant but is unable to decide to whom there should be a grant. It is not the right to have an application considered in priority to any other application, it is the right to have the grant if, all other things being equal, there should be a grant.

BRENNAN CJ: That is no doubt so on one view of it, but if that is the construction that is put on 105A, that it limits the Minister's discretion as to the lessee or licensee to be selected, why is not the question of ballot or no ballot of critical importance?

GUMMOW J: Because it goes to the identification of the class.

MR HAWKINS: My primary point is that the application is premature, that the Court should not intervene with the administrative process until the administrative process is exhausted and that the Minister will consider all applicants once he has received a recommendation from the warden.

BRENNAN CJ: But if a 105A ballot determines who has the priority right defined by 105A, why is it that the possession of that priority right is not a valuable right of the person who, amongst others, has applied and whose application is the subject, amongst others, of a recommendation to the Minister?

MR HAWKINS: Your Honours, that may well be the case, but if I can use this particular application as an example why certiorari should not be considered at this stage. This ground was pegged in October 1992. The proceedings were heard by the warden in June 1993. In October 1994 the Full Court gave its reasons for decision. The High Court is now being asked to consider a grant of special leave which, if granted, would possibly be held in October 1995. It means that the administrative process is subjected to substantial delay in circumstances where a ballot may not be relevant because the Minister may decide that one applicant is clearly worthy and the grant should be made to that applicant.

BRENNAN CJ: But the Minister on one view of 105A might not have that discretion and if he were to grant it to a person who is not entitled to the 105A right then that would only lead to further litigation at that stage.

MR HAWKINS: With respect, your Honour, it is at that stage that the litigation should be resorted to so that the administrative process can be utilised without undue delay in what may be an academic point.

BRENNAN CJ: One would expect that if the Minister were to make a grant that the grant would be subject to expenditure conditions which could scarcely be fulfilled if there was litigation pending as to whether that particular person was entitled.

MR HAWKINS: The Act gives the power to the warden to give relief from compliance with expenditure conditions and if there were an application to the court after the Minister had made a grant then no doubt the warden would give relief against the expenditure requirements.

BRENNAN CJ: Yes, very well. Have you anything further, Mr Hawkins?

MR HAWKINS: Your Honour, there is one other aspect and that is that all parties of course have the right to make submissions to the Minister when he is considering the applications. May it please the Court, they are the submissions for Minerichie and Tromen.

BRENNAN CJ: Thank you. The Court will adjourn briefly in order to consider what course it should take in this matter.

AT 1.39 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.53 PM:

BRENNAN CJ: Mr McCusker and Mr Zelestis, the Court is prepared to grant special leave on a limited basis, that is limited to the issue whether certiorari lies to challenge a decision by the warden to conduct a ballot for the purposes of determining the party entitled to the priority right conferred by section 105A. That formulation of the issue on which the Court is prepared to grant special leave is not necessarily a final formulation if either of you seek to frame it in some different way. For that purpose, would either of you wish to have the time that will be taken during the hearing of the next two applications to consider whether you would prefer some other formulation of the basis. Mr McCusker, what do you have to say?

MR McCUSKER: May it please the Court, at this stage I would just like to take some time to consider the matter. Thank you, your Honour.

BRENNAN CJ: Mr Zelestis?

MR ZELESTIS: May I adopt the same position?

BRENNAN CJ: Yes. In that event, we will adjourn this application until we have completed the hearing of the applications in Casey v The Queen and Mullins v The Queen.

AT 1.55 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.36 PM:

MR WORKMAN: May it please your Honours, I am instructed by Mr McCusker to advise the Court that he is satisfied with the wording envisaged by the Court of the proposed order granting special leave.

BRENNAN CJ: Yes, thank you, Mr Workman. Mr Zelestis.

MS McLURE: May it please your Honours, Hot Holdings' position is the same as that of Mr Creasy. We wish to make no submissions on the formulation of the special leave questions.

BRENNAN CJ: Thank you, Ms McLure. Do you wish to say anything, Mr Hawkins?

MR HAWKINS: Yes, your Honours, if I may, just a point of clarification and that is whether the order relates to any decision made by any warden, in other words, whether it is the general question, or whether the order relates to the decision by the particular warden in the particular circumstances of this case?

BRENNAN CJ: The grant of special leave can relate only to the case in hand. We do not grant special leave to consider hypothetical cases, but I do not think that that should lead you to the conclusion that the actual circumstances in which the warden reached his decision in this case is the subject of any further consideration by this Court. In other words, the question is whether or not certiorari lies to challenge the particular decision here, not whether certiorari should go.

MR HAWKINS: Yes, I understand that with respect, your Honours, but my concern was whether the question as framed would raise the issues as to, for example, the number of marbles that Mr Creasy has in the ballot.

BRENNAN CJ: No, it does not.

MR HAWKINS: And whether the decision that the applications be lodged at the same time is open to challenge.

BRENNAN CJ: No, it does not.

MR HAWKINS: Thank you, your Honours.

BRENNAN CJ: In this case there will be a grant of special leave limited to the issue whether certiorari lies to challenge a decision by the warden to conduct a ballot for the purposes of determining the party entitled to the priority right conferred by section 105A(1) of the Mining Act (WA). I am reminded there will be similar orders in both matters.

AT 2.40 PM THE MATTER WAS CONCLUDED