Creasy v Hot Holdings Pty Ltd & Ors P13/1995 [1995] HCATrans 370 (25 October 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P12 of 1995

B e t w e e n -

HOT HOLDINGS PTY LTD

Appellant

and

MARK GARETH CREASY and ROBERT WILMOT CREASY

First Respondents

and

MINERICHIE INVESTMENTS PTY LTD and TROMEN PTY LTD

Second Respondents

Office of the Registry

Perth No P13 of 1995

B e t w e e n -

MARK GARETH CREASY

Appellant

and

HOT HOLDINGS PTY LTD

First Respondent

and

ARIMCO MINING PTY LTD and ORESEARCH NL

Second Respondents

and

MINERICHIE INVESTMENTS PTY LTD and TROMEN PTY LTD

Third Respondents

BRENNAN CJ

DAWSON J

TOOHEY J

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 25 OCTOBER 1995, AT 10.20 AM

Copyright in the High Court of Australia

MR C.L. ZELESTIS, QC: May it please the Court, I appear with my learned friend, MR C.G. COLVIN for the appellant in P12 and the first respondent in P13. (instructed by Lawton Gillon Tydde)

MR M.J. McCUSKER, QC: May it please the Court, I appear with my learned friend, MR M.P. WORKMAN for the respondents in P12 and the appellant in P13. (instructed by Pullinger, Sanderson & Workman)

MR C.P. STEVENSON May it please the Court, I appear for the second respondent in P13. (instructed by Mallesons Stephen Jaques)

MR A.R. EMMETT, QC: May it please the Court, I appear with my learned friend, MR M HAWKINS for Minerichie Investments Pty Ltd and Tromen Pty Ltd who are presently named as the third respondents in the second appeal. For some reason that nobody has yet been able to explain, they have been omitted as respondents to the first appeal. We think, and I think it is common at the bar table, that they are proper and necessary parties to the first appeal as well. Therefore, I think one of the appellants will make an application for us to be joined as a respondent to the first appeal as well. (instructed by Corrs Chambers Westgarth)

BRENNAN CJ: Yes, Mr Emmett. Do you make that application, Mr Zelestis?

MR ZELESTIS: I so apply. When the second respondents in the other appeal sought leave to withdraw from that appeal, unfortunately, not only was their name dropped from our heading but the third respondents were omitted inadvertently as well, so they should be elevated to the status of second respondent.

BRENNAN CJ: Yes. There will be an order accordingly. Yes, Mr Zelestis?

MR ZELESTIS: May I hand up our outline of submissions.

BRENNAN CJ: Yes, Mr Zelestis.

MR ZELESTIS: Can I say immediately that paragraph 10 exceeds the relief we seek in the notice of appeal at 276 and 277 and we adhere to the notice of appeal which effectively seeks a declaration that certiorari can lie and a remittal of the matter to the Full Court.

Your Honours, in considering the issue whether certiorari lies in this case, there are two related issues to be considered. The first concerns the legal effect of the warden's decision to hold a ballot and the second concerns the nature of the right in priority to which the ballot process is related. That is conferred by section 105A. As to the second of those issues, we will, in due course, make two alternative submissions: one asserting that the right, in effect, has a greater content than the alternative submission but, whatever be the content of the right, each of the propositions we have sought to formulate in paragraphs 1(a) and (b) of our outline applies to it. So that our primary submission is that even if the right which is conferred by section 105A is of very little content, then for the reasons we have set out in paragraph 1, certiorari will still lie.

We say that because of the proposition that, where there is an intermediate decision which either itself finally determines a matter - here the issue of priority, which then may affect the final decision - or, if it does not finally determine the matter, here priority, nevertheless represents a decision on that topic of priority which the ultimate decision maker is bound to consider, then there are sufficient legal consequences attending the warden's intermediate decision to render it amenable to certiorari. It is, perhaps, easier to see why the first step is so because if priority is finally determined by the warden's decision so that, in so far as it is a matter which impacts on the Minister's exercise of discretion, it has, both in fact and in law, been finally determined, then it is easy to see that a legal consequence for the parties involved has been reached.

TOOHEY J: That may depend upon the meaning that you attach to "priority", I suppose. Maybe that is something you are going on to develop, Mr Zelestis.

MR ZELESTIS: Yes. Whatever be the content of the right in priority, whatever be the degree to which that right affects the Minister's discretion, then if what the warden has done is make a decision that binds the Minister on the question of who has priority, then that works a legal consequence because one party will then be able to appear before the Minister with the benefit of a binding decision in his or her favour that, whatever be the meaning of the right in priority conferred by 105A, that party has it.

DAWSON J: When you say "binding decision", binding on whom?

MR ZELESTIS: Binding on the Minister.

DAWSON J: But it is not, is it?

MR ZELESTIS: In our submission it is. That is the primary submission we would seek to develop that the warden's decision, not on all matters, but on this particular matter which is committed to his decision, is final and binding. There is one other illustration in the Act of the warden being given a power to make a decision which is conclusive on an issue in the context of an application still going off to the Minister.

DAWSON J: But there is no decision yet. There is only a decision to adopt a procedure in order to make a decision.

MR ZELESTIS: With respect, no, your Honour. In our submission, the warden has made a decision because where there is a contest between applicants, section 105A, properly construed, requires the warden himself to resolve that contest. There is a ministerial discretion - - -

DAWSON J: That is true, but by adopting a particular procedure, and all he is done is to adopt a particular procedure; he has not put it into effect yet.

MR ZELESTIS: But his relevant decision has been made: that is, he has decided to hold a ballot. The conduct of the ballot itself will not involve any further decision under section 105A or the Act in other respects, it will simply be the implementation of the decision already made. So, our primary submission is that on this issue as, for example, on the question of whether there is a substantial improvement on land that arises under s29 and, in particular, subsection (4), the Minister's discretion is, to some extent, confined by the warden having made a decision which, both in point of fact and in point of law, binds the Minister.

Our alternative submission is that if the warden does not make a binding finding, nevertheless his decision as to who has priority is, itself, a consideration which the Minister is obliged to consider so that, in a context where the Minister's discretion is confined by some specific provisions of the Act and by the general objects and purposes of the Act, the fact that the Minister is obliged to consider one finding made by a warden produces the result that the Minister could not ignore or diminish the weight of that finding without a proper reason. So that there is, once again, a legal consequence which attaches to the finding. The party in whose favour the priority finding is then made has the benefit of a consideration which the Minister is bound to consider and cannot ignore except, to put it shortly, for good reason.

DAWSON J: The Minister is not bound to accept the recommendation of the warden, is he?

MR ZELESTIS: No, but, with respect, the submission I am putting is not addressed to the recommendation.

DAWSON J: But the recommendation would be made on the basis of the priority determined by the warden.

MR ZELESTIS: Yes. The important point is the difference between them.

DAWSON J: The warden will, presumably, make his recommendation in accordance with the priority which he determines.

MR ZELESTIS: Yes.

DAWSON J: And the next result is he makes a recommendation. The Minister is not obliged to accede to the recommendation; he can disregard it if he likes.

MR ZELESTIS: He is not obliged to accede to the recommendation on this alternative argument and even on the first, we accept that. But on the alternative argument, he is obliged to consider the warden's decision under section 105A which is some different from - - -

DAWSON J: Only in so far as it finds its way into the recommendation.

MR ZELESTIS: But it necessarily will, in our submission.

DAWSON J: Yes, but he is free to disregard the recommendation.

MR ZELESTIS: He is free only in the sense that he has a discretion which is to be exercised for proper purposes and having regard to relevant considerations. He is not free in any other sense so that, if he is obliged to consider a matter upon which the warden has made a finding, although not binding, there is still a legal consequence because, for example, the Minister may deal with the matter on the basis of that finding without further inquiry.

TOOHEY J: That is why it seemed to me that it turned, in the end, upon the meaning to be attached to priority. Does it simply mean that the Minister must give prior consideration to that application which comes to him as a matter of priority before considering any other application? And is that all that it means, or does it go further than that?

MR ZELESTIS: Your Honour has really raised two points. Our first submission is that whatever the content of the right in priority, then our first two propositions apply equally. Secondly, we say that there are at least two alternative views of the content of the right which are open. The first, and the one that we mainly propound, is the submission that what the right does is require the Minister to consider the applicant with priority separately from any other applicant. Because, once you indulge in a comparative process, the notion of priority is effectively destroyed.

BRENNAN CJ: That seems to me to be putting your case unnecessarily high, Mr Zelestis.

MR ZELESTIS: Your Honour, perhaps unnecessarily high for today's purposes, but nevertheless that is the submission we propound. The alternative is that the right in priority is the right to be considered as the person who was first in time. And that may be what the Full Court said was the right here, although it may be that the Full Court's reasons really say it is something even less. That is a matter, with respect, that is not entirely clear. Even if the right is simply that, the right to be treated as the person who first complied, in the overall statutory context, given the importance accorded to priority by the statute, and given the fact that the warden will make a decision on that topic which, at least, the Minister is bound to consider, in our submission, certiorari goes because there is sufficient legal consequence.

If the Minister chooses to act upon the warden's decision - not necessarily his recommendation, but his decision - then obviously, an erroneous decision subjects a party to a legal hazard. It is more than the circumstance Justice Stephen described in the ACTU-Solo Case of increasing the probability in fact, or decreasing the probability in fact of some outcome, some particular exercise of discretion. Because, in cases such as ACTU-Solo, there was no legal obligation on the part of the ultimate decision maker, there the Minister, to have any regard whatsoever to the report in question, there a report of a royal commissioner.

TOOHEY J: In effect, are you saying that it does not matter what meaning you give to right in priority, it must raise some matters for consideration by the Minister, which warrant the grant of prerogative relief?

MR ZELESTIS: It may not be possible to say no matter what, because if you read it away completely, the argument may get down almost to the level of the ACTU-Solo kind of point. But, in our submission, in a context where the statute first of all describes the Crown land which is open for mining in sections 18 to 26A and has specific provisions there to protect reserves and town sites and other things, it specifically says that private land is open for mining in section 27 to 39 and once again, has specific protective mechanisms to remove certain private land from mining. Then, when it comes to deal with the grant of tenements, for example, in section 58, it sets out factors as to which there is to be material provided to the warden and they can be summarised as being factors relevant to the applicant's ability to effectively explore the land. That is a topic which section 57(3) requires the warden to be satisfied of before he recommends an application.

So, you have a bundle of factors concerning the ability effectively to explore and then you have 105A priority. So, having established a scheme which effectively makes land available for mining, subject to restrictions which will not affect the Minister's discretion because they are dealt with by other mechanisms, the Act then sets out two particular factors which, in our respectful submission, the Minister is bound to consider and bound to give considerable weight to. There may be other factors which one can discern from the Act more generally, such as considering the overall interests of the State, but what is significant is that the Act does single out two particular factors as worthy of particular mention and one of them, section 105A, erects a procedure for the resolution of disputes which has no comparable provision applying to the Minister.

While section 59(4) certainly says that after the Minister has received the documents from the warden he:

may grant or refuse the exploration licence as he determines, and whether the warden recommends the granting of the licence or the refusal thereof -

it is important to remember that section 105A specifically, in subsection (3), provides that:

Where in respect of any land the warden is satisfied that 2 or more applicants complied with the initial requirement.....at the same time, priority shall.....be determined by ballot conducted by the warden -

It is true that the same language is not used in 105A(1) but nevertheless, in our submission, the intention of section 105A is made clear by subsection (3) and that is that, where there is a contest as to priority with respect to an exploration licence, who lodged first the application, it is the warden's duty to hear that contest and to finally decide it. In our submission, you cannot read section 105A as only committing to the final decision of the warden the decision to hold a ballot where he finds that two or more applicants have complied at the same time.

In our submission, it equally makes his decision binding if he finds that one of the two or three contesting applicants lodged first. One must remember that section 59(1) provides that:

An application for an exploration licence shall be heard by the warden in open court -

It permits objections and sets up a mechanism in subsection (2) for the dealing with objections and then goes on to provide, as I have already indicated, for the transmittal to the Minister of the report containing the recommendation and the warden's reasons, and also the relevant documents. So, in our submission, the statutory scheme is one in which section 105A sits quite neatly and that is that there is that matter, together with the section 29(4) matter that the statute requires the warden to determine finally. If that be wrong, it at least sets up a mechanism which requires the warden to make a determination on the priority issue and binds the Minister - - -

DAWSON J: It is really only to make a recommendation on that second line of argument. He cannot do more than that.

MR ZELESTIS: No. Section 105A, in our submission, is the source of a power and a duty - - -

DAWSON J: It may be, but if the Minister decides, on the material provided, that the recommendation is wrong in relation to priority and substitutes his decision as to priority, that is it.

MR ZELESTIS: Dealing with the alternative submission, if the warden's decision is not binding, the Minister is bound to consider the warden's decision which will be reflected in his reasons for recommendation - - -

DAWSON J: Precisely.

MR ZELESTIS: And being bound to consider the warden's decision, in our submission, is a sufficient legal consequence because he might act upon that without further inquiry whatsoever. So that a person who was, in point of fact and law, really entitled to be given the priority but who was placed second by an erroneous decision of the warden, would then have his application subjected to a legal hazard, not just an increased probability of factual failure. But, there would be a legal hazard because the Minister would be in the position that he would be obliged to consider the warden's decision and would be obliged to exercise his discretion for good reasons, as I have put it shortly. So, the Minister would be entitled to act upon the decision.

TOOHEY J: Mr Zelestis, how does it work in practice, if there is more than one applicant and priority is determined by ballot? Does the warden then proceed to hear only that application to which priority has been accorded?

MR ZELESTIS: Usually, as I understand the position, there will be objections by each to the other and so there will be a joint hearing, as happened here, of the applications, because there are some threshold questions such as the ability to explore effectively, which the warden must be satisfied about. And if he is not satisfied about that, then that applicant does not really get any further under section 57(3). So, there will usually be a joint hearing of all the applications, but as I understand it, what would happen then is, having determined which one had priority, the warden would make a recommendation favouring that one and would leave the rest of the applications adjourned.

TOOHEY J: Or if he decided not to make a recommendation favouring the application with priority, would he then proceed to go down the line, as it were?

MR ZELESTIS: I am not sure that it has ever happened, your Honour and it is difficult to see what ground the warden could have for departing from the statutory policy which 105A manifests and that is that priority is, at the very least, an important consideration. We would submit the warden does not have discretion himself to disregard priority and find a reason for promoting someone else as the party to be recommended. Here, of course, the warden's reasons are couched rather strangely. The warden ends up recommending all of the five competing applications for exploration licences, but that may simply be because, at the moment, the warden, has not finally made the relevant recommendation which goes to the Minister and we anticipate that, if he was permitted to hold a ballot, he would eventually make a single recommendation, because, in our submission, that is what the Act requires him to do.

DAWSON J: Is he not required to make a recommendation in relation to each of them? It would be a recommendation that one be acceded to and that the others be refused. Would that not be the situation?

MR ZELESTIS: That may be the situation. One thing, in our submission, you cannot do, is recommend them all.

DAWSON J: No.

MR ZELESTIS: Recommending them all is really a way of saying, "I'm satisfied they all comply with section 58(1); they've all lodged their applications, paid their money and they can explore effectively".

DAWSON J: But, having decided priority, all other things being equal, he would recommend one and recommend the refusal of the others, I would presume. In other words, he has to make a recommendation in relation to each application, does he not?

MR ZELESTIS: I am not suggesting that, with respect, your Honour, for this reason: that section 59(4) concludes with the words:

whether the warden recommends the granting of the licence or the refusal thereof.

It is a single licence which is being contested for and it is that single licence which is to be the subject of the recommendation.

DAWSON J: That is right, but he has to deal, by way of recommendations, with each application, does he not?

MR ZELESTIS: He may, having formed a view as to which one should be the subject of the affirmative recommendation, in our submission, he may be entitled to wait on the others until the outcome of the Minister's decision is known.

DAWSON J: But the Minister has to make a decision in relation to each application, does he not, or am I wrong?

MR ZELESTIS: In our submission, with respect to section 105A, no, because if the Minister decides to grant the one in priority, then there is no need, really, for the exercise of any discretion by the Minister.

DAWSON J: But with competing applications, he could not decide one and then just say that, "I don't have to decide the others now". He would have to look at the competing applications.

MR ZELESTIS: The others follow as of course. The proposition which is at the bottom of our argument that the right in priority has a higher degree of content is that as soon as the Minister indulges in a comparative assessment, it denudes the notion of priority of any content itself because if priority simply means no more than that you are entitled to have the Minister told that you were first in time and then the Minister looks at the whole field of applications, that is not much priority. It is certainly not as much priority as if the Minister is obliged to consider your application as if it was the only one.

BRENNAN CJ: Why would not the Minister be able to say all things being equal, the one who was first in time should have it? That is a worthwhile right to have, is it not?

MR ZELESTIS: It is a sufficiently worthwhile right for us to seek that, your Honour, as our alternative argument.

BRENNAN CJ: I can understand that. All you are saying, essentially, is that the Minister cannot make a valid decision without taking into account the warden's recommendation, including the element of priority.

MR ZELESTIS: Yes, your Honour; I am trying to say something a little more specific, that the warden's decision on priority binds the Minister firstly - - -

BRENNAN CJ: I know you are wanting to put it as high as that, but your basic contention is that it is an element in the decision making process, and that is sufficient. That is your lowest common denominator.

MR ZELESTIS: Yes. That is the lowest common denominator. It is not only an element in the decision, it is, if you like, a legal element in the sense that it is one the Minister is obliged to consider which is what distinguishes this case, in our submission, from ACTU-Solo and, indeed, Ainsworth because in neither of those cases were the reports reports which any decision maker was obliged to consider. He may or may not have done so. So, that is the distinguishing feature.

GUMMOW J: You then use that consideration that this is a matter the Minister must take into account. It may not be determinative, but he must look at it, as your footing for certiorari, do you?

MR ZELESTIS: Yes, on the basis that the Minister's legal obligation to take it into account is sufficient because the Minister then may decide to act upon it without further inquiry and so, if a party was denied priority by an erroneous decision, that party's application would plainly be subjected to a hazard which is more than a practical or factual hazard; it is a legal hazard. Because the Minister would then, being obliged to consider the warden's decision, be entitled to act upon it. So, it is not a matter of choice in the first instance by the Minister as to whether he has regard or not; it is a matter of legal duty that he has regard to the warden's decision on priority.

GUMMOW J: And you get that out of the content of the phrase, "the Minister may" et cetera in 59(4)?

MR ZELESTIS: We get it out of the overall statutory scheme which provides for the warden to hear the applications. Section 105A specifically commits the issue of priority to the warden's decision; it does not refer to the Minister at all. It does not provide for the Minister to resolve disputed questions of fact and law and then provides for the warden to send up his report and reasons to the Minister. So, in our submission, the scheme is clear that there are some things that the warden must do and the Minister must pay some regard to.

TOOHEY J: But, there may not be any conflict in theory, although it might be rather unworkable for the Minister to receive recommendations favourable or adverse in regard to two or more applications, priority having been determined by the warden, but the consideration by reference to priority being a matter for the Minister.

MR ZELESTIS: But as long as the Minister is obliged to have regard to the warden's finding on priority - and as I understand, your Honour's proposition does not deny that -

TOOHEY J: No, it assumes it.

MR ZELESTIS: Yes, then that is sufficient, in our submission, for certiorari because, as I keep saying, the Minister would be entitled to act upon the warden's decision even though it be erroneous. So, there is a legal hazard, then. The person with the legal obligation to make a decision and report it has, in effect, and in the example I have put, made a wrong decision.

BRENNAN CJ: I think that point has been made, Mr Zelestis.

MR ZELESTIS: Yes, certainly. As a matter of authority, we rely simply upon Ainsworth, what was said in the joint judgment at 580 to 581 and what was said by your Honour the Chief Justice at 595. I am not sure that I need take your Honours to those passages now. Although I am not sure if it is put against us, the case most strongly against us, I suppose, is the old case of Macfarlane which is on our supplementary list. I need to just briefly mention Macfarlane because, in our submission, Macfarlane although in its outcome it appears to be an obstacle, does not really represent an obstacle. Macfarlane was a case in which the High Court refused prohibition and some Justices also went on to say it followed that certiorari did not run, although I think the Chief Justice pointed out that certiorari had not been pursued in argument.

It was in a context where the Immigration Act of the Commonwealth contained a section 8A which is set out in 32 CLR 526 which said, to summarise, that where the Minister was satisfied of certain criteria, he could establish a board before whom the person concerned would be summoned to show cause why he should not be deported. And then, in subsection (4)(b), if the board recommended deportation, the Minister might make an order for deportation. The decision really went off on the basis that prohibition, as a prerogative writ, did not run because this was not a judicial function being performed by the board, but nevertheless, it is a case in which there was an intermediate decision and it was a context in which only an affirmative intermediate decision enabled the Minister to decide affirmatively to deport.

It is perhaps sufficient for me to tell your Honours the page references at which it becomes clear that their Honours relied upon the fact that there was no judicial function being performed here. It is the Chief Justice at 527; Justice Isaacs at 537; Justice Higgins at 569; Justice Rich at 577 and Justice Starke at 583.

In the later cases on our list, including Justice Kitto in Testro and two State decisions, attempts have been made to confine this decision more or less, I suppose, to its facts but in our submission, it has really been overtaken by the extension of the prerogative writs beyond bodies exercising judicial functions and would not stand. And, indeed, by the time the Australian Stevedoring Industry Board was decided in 1953 in 88 CLR, that had become clear - that is No 18 on our list.

BRENNAN CJ: I think you could deal with any authority that is relied on in Testro in reply if need be, Mr Zelestis.

MR ZELESTIS: Thank you, your Honour. Can I deal quickly, then, with the way in which the matter was dealt with by the Full Court, beginning with the judgment of the Chief Justice. At the bottom of 214 in the appeal book, the Chief Justice expresses his agreement with Justice Rowland regarding the true construction of section 105A and at the bottom of the page, in the last sentence which I need not read, refers to the applicant, who is first in time having priority without there describing what is the nature of the right. His Honour gives some description of that over the page. But, the matter emerges more clearly at 228 to 229. At 228, line 20, his Honour puts it:

that the applicant who has acquired priority by ballot under s 105A(3) is entitled to have his application considered first.

He goes on to deal with that and then, at the top of page 229, at line 2, his Honour says:

Although the order in which the Minister may consider them will be controlled as to the first to be considered, the Minister will be entitled to grant -

It is not entirely clear what his Honour is saying there: whether he is saying his Honour is saying the Minister must consider them one at a time or whether his Honour is saying that consideration of all of them together, they are ranked as to priority. But, at all events, his Honour's decision did acknowledge that there was a consideration of priority which the Minister would have before him.

GUMMOW J: That passage followed a discussion of legitimate expectations which, as I understand it, you would say is beside the point?

MR ZELESTIS: Yes, we do not put the case so much as legitimate expectation now. It is simply that the Minister is bound to have regard to the warden's decision at the least.

GUMMOW J: Yes.

MR ZELESTIS: One of the ways we put it was a little different, below. Justice Rowland dealt with the matter at 249 to 250. He begins at 249 about line 10. I need not read it all, but the burden of the rest of that page and 250 is that the Minister's discretion is not necessarily circumscribed as his Honour puts it at the top of 250, by the fact that an applicant has won a ballot as he describes it. Then he notes at 250, lines 5 to 15 that:

The winner will, of course, be noted in the Warden's report to the Minister and, assuming the Minister will not exercise his discretion in a capricious manner, that win would probably carry the day if all other matters which fall to be considered by the Minister as between various applicants are equal.

Then, his Honour develops it at 254 to 255 and it is here at the bottom of the page that, in our submission, his Honour errs because, at the bottom of 254, his Honour postulates that the Minister will have before him "his own advice as to the proper construction of the Act". His Honour does not seem to contemplate that the Minister will want to go into the facts again; he does not put it that the Minister is not entitled to go into the facts again, but he contemplates that the Minister will take his own advice on the true construction of the Act and, presumably, apply that to the facts as found by the warden.

TOOHEY J: What do you mean by "go into the facts again"?

MR ZELESTIS: Return to the facts and see whether he shares the view of the warden, based upon the transcript of evidence and all the documents put up to him, that someone was first in point of time. The warden's decision in this case involved the resolution of a number of thorny factual issues as to what actually happened on this hectic morning in the mining registrar's office.

DAWSON J: The Minister could, if he wanted to, take the view that the decision of the warden was wrong and that the person who put his application in at 8.30 point 02 was not making his application at the same time as the person who put in his application at 8.30 point 05.

MR ZELESTIS: On our alternative argument we accept that but simply say that he is obliged to consider the warden's decision. All I am pointing out here is that his Honour seems to deal with one aspect of the Minister's power to revisit the topic or to consider the topic but not the other aspect. On our primary submission, of course, all of this is wrong because the Minister is bound by what the warden found. His Honour put it at page 255, line 5:

the most that any applicant can have by way of legitimate expectation is that the Minister will be properly advised as to the proper construction of the Act. He is not bound by anything that the Warden has said in his reasons or in his recommendation - - -

DAWSON J: I do not understand the use of the term "legitimate expectation" in that context. A person is entitled to have a fair procedure or the procedure which is prescribed. It is not a matter of him having an expectation of it, legitimate or otherwise.

MR ZELESTIS: No, and he is also entitled to have the warden and the Minister construe the Act correctly, in our submission.

DAWSON J: Of course he is because that is the law, but where does legitimate expectation come into it?

MR ZELESTIS: It is only sought to come into it on the basis that if the Minister was not bound to consider the warden's recommendation, nevertheless a person had a right to have the Act construed properly and that that right should - - -

DAWSON J: That is only saying that the Minister is bound to apply the law, but you do not have a legitimate expectation of someone applying the law.

MR ZELESTIS: No, I accept that, your Honour. Justice Nicholson at pages 263 to 266 deals with the question of the nature of this right in priority. At 263, lines 15 to 20, he rejects the appellant's contentions that the words in 105A restrict the Minister's discretion and says at line 20:

In my opinion, the words of s 105A(1) do not provide a right to grant but rather a right to have considered for grant.....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 -

At 264, line 5, he describes the Minister's discretion as an overriding one. At lines 25 to 35 he describes the position again, and I need not read that. Also at the bottom of 265 and going over to 266 there are relevant passages. At 266, line 5, he puts it this way:

The Minister in the exercise of his discretion is entitled to reach beyond the party first brought to his attention as a consequence of the application of a ballot.

Once again, that seems to be an echo of the Chief Justice's notion that the applicants are brought in one at a time rather than - they are considered together by the Minister but with an order of priority having been stated by the warden. His Honour then goes on to say at 266, line 7:

The exercise of the Minister's power is not conditioned by the ballot although the outcome of the ballot would be a matter the Minister would be required to take into account along with the other circumstances concerning how it came to be ordered.

There his Honour has clearly accepted our submission to that effect. The Chief Justice had noted that submission earlier. I am not sure that his Honour had dealt with it in such clear terms as Justice Nicholson did who, as I say, adopted our submission to that effect. Those are our submissions.

BRENNAN CJ: Thank you, Mr Zelestis. Yes, Mr McCusker.

MR McCUSKER: Your Honours, I have an outline of submissions.

BRENNAN CJ: Thank you. Mr McCusker, what is the significance of paragraph 2(a)?

MR McCUSKER: That deals with a matter that was ventilated before the Full Court, your Honour, on behalf of this appellant.

BRENNAN CJ: And in respect of which no grant of special leave was given.

MR McCUSKER: No, your Honour. We are simply putting that by way of background. We are not seeking to have this Court determine that issue. The broad issue for determination, as I understand it, today is simply whether the warden's decision to hold a ballot is susceptible of certiorari.

MR McCUSKER: Not concerned with the detail, your Honour, no.

BRENNAN CJ: The number of balls that are going into the ballot box.

MR McCUSKER: No, your Honour. We are looking at the matter from a slightly different angle from Hot Holdings, the appellant. I do not wish to traverse the same ground, so I hope I will be fairly brief. First, your Honour Justice Dawson raised with my learned friend Mr Zelestis the question of legitimate expectation and, with respect, we agree that legitimate expectation is really not the relevant consideration here. The question is whether there has been an action or decision made in accordance with the law. That is the issue.

Your Honour Justice Toohey raised the question of what is meant by "right in priority" under section 105A(1). In our submission, with respect, that clearly goes to the heart of the matter. The court below in various ways suggested that the determination of the right in priority or determination of priority would mean no more than that the Minister would, in receiving the warden's report in a recommendation, consider the applicant who was first in time and therefore had a priority first. In our submission, that is inconsistent with the wording of section 105A(1) which refers to a "right in priority to have granted to" that applicant, a right in priority over the other applicants.

The submission for this appellant is that where the warden makes a determination as to priority, that as a matter of common sense would go to the Minister together with his report and a recommendation. Oddly enough, the Act is silent as to whether that is so or not, but it cannot be a determination as to right in priority and then simply left in a vacuum. So one must, I think, as a matter of necessary assumption, take it that the warden, having determined priority, includes that determination in his report which goes to the Minister.

The recommendation which is provided for which must accompany the report is again not the subject of any statutory explanation as to on what basis the recommendation is to be made, and relevantly it does not say that the recommendation must be based on his determination as to priority. There is no provision in the Act to that effect. So it is at least open under the Mining Act for the interpretation that the Minister will receive from the warden a report and a recommendation and the warden's determination as to priority, and the Minister would receive all, it necessarily follows, in our submission, of the applications and the warden's recommendation with respect to each whether to grant or refuse.

The Minister then considers them, not necessarily, in our submission, in the order of priority but considers them all but, all things being equal, then the first in time - that is, the one who has been determined to have priority - would be granted the tenement.

BRENNAN CJ: Could the mining warden make a recommendation in these terms: "I recommend that one of the following applications be granted since all of them satisfy 59(3), but I find that application No 1 has priority"?

MR McCUSKER: Yes, he could. In my submission, he could make a recommendation that, notwithstanding that application No 1 has priority, to take it further, he would recommend for the following reasons the grant to another applicant which did not have priority. The statute requires that there be a recommendation as to the grant or refusal, so there must be that accompanying aspect of the recommendation. But he is not bound to recommend the grant to the first in time. He may say that there are reasons which are set out, because he must state the reasons, which would militate against that.

The Minister may of course take a different view. He may for policy reasons, for reasons to do with the perceived policy of the Act which may in turn of course be discerned from extrinsic material, parliamentary debates and so on, public policy, reach an entirely different conclusion. But, given all that, it is our submission that the right in priority to have granted is still a valuable right because, all things being equal, even if the Minister has taken as he should all relevant policy considerations and discretionary matters into account, at the end of the day, if he concludes that all things are equal, it is our submission that the Minister would then be obliged to grant the tenement to the first in time.

TOOHEY J: Notwithstanding that the warden has recommended that the grant be made to some other applicant?

MR McCUSKER: Yes, because the Minister has that broad discretion under the Act. He may grant or refuse, notwithstanding the content of the report or the recommendation.

TOOHEY J: I am not too clear what is meant by "all things being equal".

MR McCUSKER: That is if the Minister can discern no reason within his discretion for refusing to grant to the first in time, then the first in time will be entitled to the grant.

TOOHEY J: Why would not the warden's own recommendation or unfavourable recommendation be a matter for his consideration?

MR McCUSKER: It certainly would be a matter for his consideration but not determinative of his decision. That is simply because the statute provides in section 59(4) that:

the Minister may grant or refuse.....as he determines, and whether the warden recommends the granting of the licence or the refusal thereof.

So the Minister has that wide discretion but it is a discretion nonetheless which must be exercised properly. It cannot be exercised capriciously and it must have regard to relevant, we would say, considerations. As we have put it in our outline in paragraph 8 referring to FAI Insurance v Winneke, determinations would take into account policy issues and the scope and purpose of the statute. For example, the Minister could not properly take into account some degree of consanguinity between himself and the applicant. Anything that is extraneous for proper policy consideration should not affect the Minister's decision, but the Minister, having received a recommendation from the warden which he must take into account - the Act obliges him to consider it - nevertheless, by section 59(4), may depart from it and may grant or refuse as he in his discretion sees fit.

BRENNAN CJ: Are you saying anything different from what Mr Zelestis has been saying in his alternative argument?

MR McCUSKER: No, in the end I think not, your Honour, and so I will not labour the point further. We say that Mr Zelestis's first argument puts it too highly and that the position is as I have just attempted to expound it to your Honours. But, even so, given that the Minister has this discretion, at the end of the day the determination of the right in priority is a decision which does affect the right as a real value.

DAWSON J: The point is that the warden has not determined priority yet.

MR McCUSKER: No, your Honour, he has not determined priority but he has made a decision which of itself inevitably will lead to that determination.

DAWSON J: It may in the end turn out that the person who is drawn first out of the ballot is the person who was first in time - 8.30 point 01 or whatever it was.

MR McCUSKER: It may, your Honour, but the prospect of that occurring is a risk. It is a real risk or hazard, so that his right - - -

DAWSON J: But it demonstrates that no right has yet been affected.

MR McCUSKER: The right has been affected in that, instead of a determination by the warden in accordance with the law, the warden has left it to hazard. His determination, we would say furthermore, on behalf of this appellant, wrongly proposes to include in the ballot, and therefore subjects this appellant's rights to a greater hazard, two applications or two marbles that should not be there and has wrongly excluded four applications that should be there. So that these are matters for the court below to deal with if this Court determines that the warden's decision, which is a decision as to the holding of a ballot, is capable of review by certiorari.

BRENNAN CJ: Well there are two decisions, are there not, I suppose they are related: the first is that they were the same in point of time.

MR McCUSKER: Yes.

BRENNAN CJ: And that finding, if it is a finding rather than a decision, is one which enlivens the power or the duty to hold a ballot.

MR McCUSKER: The ballot, and then there is the further decision beyond that, your Honour, as to the participants in the ballot.

BRENNAN CJ: Yes.

MR McCUSKER: Yes, that follows, yes. May it please, your Honour, they are our submissions as respondent to the first matter and as appellant in the second.

BRENNAN CJ: Yes, thank you. Is Mr Stevenson next?

MR STEVENSON: Thank you, your Honours. There is an outline of submissions which has been handed up.

BRENNAN CJ: Yes, Mr Stevenson. You had better give us a few minutes to have a look at this.

MR STEVENSON: If it please, your Honours.

BRENNAN CJ: You are in basic agreement with those who have gone before you, Mr Stevenson.

MR STEVENSON: Yes, your Honour, except to the extent that we would put some more restrictions on the discretion that the Minister has to grant, which have not been referred to by my learned friends.

BRENNAN CJ: I see.

MR STEVENSON: I have set those out, your Honour, in paragraph 19 and I suppose from our viewpoint the most important of those is the reference to section 118 of the Act, which in our submission imposes a condition precedent on the Minister in the sense that what we submit, your Honours, is that if that section has not been complied with then the Minister cannot lawfully grant a competing application and that is where our application rests in this matter.

DAWSON J: How does that fit in? You say there should be no grant of certiorari to contest the decision to hold a ballot, because that is irrelevant now. In the circumstances, the only thing the warden can properly do is to recommend a refusal of those applications which did not comply with section 118. Or do you put it in some other way?

MR STEVENSON: No, that would be our submission, but what we say, with respect, your Honour, is that in order to determine whether or not certiorari does lie in the question which is before the Court, the Court must consider the nature, or the content, of the priority right which is conferred by section 105A and, secondly, must also have a look at the Minister's discretion under the Act to grant. And what we say is that that discretion of the Minister is not absolute or unfettered, but the condition precedent which we say exists in relation to section 118 is something which, at the end of the day, limits the Minister's discretion and it is another example of why certiorari ought lie, because the warden may take a determinative view in his recommendation on that particular issue.

BRENNAN CJ: But what we would be concerned by is not whether the Minister's power is confined by section 118, but whether the existence of a priority finding by the warden contains any relevant limitation on ministerial discretion.

MR STEVENSON: Yes, your Honour, and all we are submitting is that when you consider that question you need to have a look at, with respect, the extent or the nature of the Minister's discretion and the reference to section 118 is simply an example.

BRENNAN CJ: Just background.

MR STEVENSON: Yes, your Honour.

BRENNAN CJ: Yes, I see.

MR STEVENSON: There are two other matters I would seek to add to the written submission: firstly, to the extent that it refers to a construction that the Minister must grant the application to that party which is first in time, whether that is determined by ballot or as a finding of time of lodgement. That argument seems to have been abandoned by the appellant in our matter, so we do not make any further submission in that regard; and secondly, we would refer the Court to section 116 which has an indefeasibility provision in the Act, and that is attached to our outline of submissions for convenience. We simply refer to that section, your Honours, because it may be all very well to say that one need not concern oneself with what may or may not be right or wrong, because it can be fixed by the Minister, but the Minister, when he has in fact made his decision to grant the tenement, it may be that on a construction of that section his decision to grant the tenement is in fact indefeasible.

BRENNAN CJ: So it is all too late from that point onwards.

MR STEVENSON: Yes, your Honour, from a practical viewpoint, and that is another reason, in our submission, why certiorari may in fact be necessary at an earlier stage in the process. Those are our submissions.

BRENNAN CJ: Yes, thank you, Mr Stevenson. Yes, Mr Emmett.

MR EMMETT: May it please, your Honours. Your Honours, the resolution of this appeal depends upon an examination of two matters: first of all, what did actually happen and what really is under challenge and second, an examination of the scheme of the legislation to see what consequences flow from what happened. Clearly the question of the construction of section 105A is in issue. The first point that we wish to develop is that the way in which the proceedings have been framed in a sense misstates the issue. The order nisi sought to quash a decision relating to the holding of a ballot. That, of course, is not a decision that the warden makes. He is bound to do it if certain circumstances are satisfied.

BRENNAN CJ: Why do you say it is not a decision that he makes?

MR EMMETT: Well, if I could ask your Honours to look at section 105A to make it clear what I mean by that. Subsection (3):

Where in respect of any land 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.....be determined by ballot conducted by the warden in open court on a date to be determined -

TOOHEY J: You may well be right if you isolate the opening two lines of subsection (3), Mr Emmett, but it is really a sort of compendious - perhaps not a compendious way of putting it, but there must be a satisfaction by the warden in order to trigger off the decision to hold a ballot.

MR EMMETT: That is the point, though, that the warden has to be satisfied. If he is satisfied, then the holding of the ballot follows, not because the warden decides to do it, but that he is bound to do it if he is satisfied as to those matters. And if there is any attack it must be on the warden being satisfied, which is a different matter from the way in which the question in the order nisi is framed and of course leads to the question that this Court has granted leave in respect of. Now the reason why it is necessary to do this is because the extent to which something has happened which affects rights has to be determined in order to decide whether certiorari will or will not lie. The question of whether or not the warden was satisfied is certainly one of fact, perhaps one of mixed fact and law.

The way in which the initial proceedings were framed may not raise that question adequately, and it certainly does not appear to have been developed properly before the Full Court, that is, an examination of the material to determine whether the warden was properly satisfied. The Full Court, of course, did not decide the matter, because they concluded that there was no basis for certiorari in the way in which the case was then put, and we support that conclusion.

Could I take your Honours briefly to what the evidence was before the Full Court and the conclusions of the Full Court as to the warden being satisfied, which really is the issue. If he was not satisfied, of course, of if for some reason he should not have been satisfied, then there would be no ballot.

BRENNAN CJ: What is the purpose of doing this? To demonstrate what proposition?

MR EMMETT: To examine what it is that certiorari would go to, because the only question this Court is determining is whether certiorari could go, not whether it will go, we accept that - the Court is not reviewing the decision as to whether or not certiorari would go in the particular circumstances, but the question of whether or not certiorari is capable of going in the circumstances.

DAWSON J: In other words, that the writ which was sought was a writ based upon a wrong determination of the mining warden that a ballot be held. You say he never determined that at all; that followed as a matter of course from his being satisfied that the applications were made at the same time.

MR EMMETT: Indeed, and that really, in our submission, is what the Full Court said, that there is no right affected at this stage by what has happened to date. It is conceivable, according to what construction you put on section 105A, that at some time in the future the Minister may have to consider the application of section 105A, and in that case it may well be that the question of whether the warden was satisfied and whether he was properly satisfied might be an issue, but it is at that point that some right is affected when the Minister, after receiving all of the recommendations and the other material which is required to be sent to him by the warden, sits down and decides to make a decision.

DAWSON J: The most that the warden has done on this version of the matter is to make a finding of fact.

MR EMMETT: Indeed, and that is really our submission. If it is a finding of fact, this writ does not seek, in a proper form, to determine or to challenge that question, but seeks to quash the decision to hold the ballot which is not really the decision which was made.

GUMMOW J: It is not just the question to hold the ballot, but it was to who is to take part in it, was it not?

MR EMMETT: Well, but they are the subsidiary issues that arise as between the appellants in the two appeals.

GUMMOW J: But then the subsection says where:

the warden is satisfied.....priority shall.....be determined by a ballot conducted by the warden -

Wrapped up in "shall.....be determined by a ballot conducted by the warden" is decisions as to the manner of conduct of the ballot; who participates in it.

MR EMMETT: But what the Full Court said was, the manner of the conduct of the ballot does not really matter at this stage until you get to the stage where the ballot matters. Now so far as the respondents for whom I appear, those questions do not matter. The only issue for the respondents for whom I appear is whether there be a ballot; some of the other parties say, if there is a ballot, we ought to have five marbles rather than one marble and somebody else says that he ought to have a marble or not have a marble, as the case may be.

BRENNAN CJ: Well, we are not concerned with that aspect.

MR EMMETT: We are not concerned with that at all.

BRENNAN CJ: But if you are seeking to create a dichotomy between the finding and what follows and you attribute what follows to the operation of the Act and not to any decision by the warden, now, if that be right, we have this situation: that immediately before the warden makes his finding, the situation is still open as to whether or not the priority right ought to be determined by reference to the actual time of lodgement. After this finding is made, so far as the warden is concerned, it is to be determined by reference to the results of a ballot. The warden has done something which alters the course of events. Now whether you call it a finding of fact or anything else, within the framework of the statute he has done something to alter that course of events.

MR EMMETT: That is so, but the question is then, bearing in mind that that is the decision, when does that impact on anybody's rights, and the Full Court said it does not, at that stage, because the Minister may never have regard to - - -

BRENNAN CJ: Well, that is another point.

MR EMMETT: Yes, that is the second question, the analysis of the legislation.

BRENNAN CJ: Yes, I am just endeavouring to focus on your first proposition, because this dichotomy between the finding of the facts which enlivens the power and which is the familiar case and the one which you are seeking to raise here, which is a finding of fact which has no element of decision about it because the Act operates simply upon the fact of the satisfaction, seems to me to be a novel distinction and for my part I would need to have some indication that the usual situation is one which does not apply.

MR EMMETT: With respect, your Honour, the distinction is clear from the language. One can draw a distinction between that proposition and the power which the Minister has which is enlivened by the warden conducting a hearing and then making a recommendation and sending the papers to the Minister. The Minister simply does not have the power to exercise any discretion as to whether he grants or not grant until the papers have been sent to him pursuant to the provisions of section 57, 58 and 59. The language of section 105A however, does not say the warden may, if he is satisfied, conduct a ballot; it simply says, in those circumstances, priority is to be determined in this way, because subsection (1) is incapable of being applied because there is no way of determining - - -

DAWSON J: Put it this way, that whatever error he may make it cannot be an error of law.

MR EMMETT: That is our submission, and if that is the case it is quite clear that it is not reviewable by certiorari. If it is left to him - - -

DAWSON J: It is true that on his being satisfied a ballot follows as night follows day.

MR EMMETT: That is right.

DAWSON J: But his satisfaction is not a matter of law. Well, of course, it is put against you that it is.

MR EMMETT: It is, but that is why I wanted to take your Honours to just what actually happened to see, at least, how the warden thought it was happening and how the Full Court thought it happened. It will not take too long. If I can just refer to a couple of pages of the appeal book to indicate what - - -

GAUDRON J: Mr Emmett, I know the matter has come forward as a certiorari case, but is it not also possible to look at the matter on the basis of a constructive failure to exercise a duty to determine priority in the particular circumstances.

MR EMMETT: That has never been put - - -

GAUDRON J: I accept that.

MR EMMETT: - - - and I am not sure that there is a duty to determine priority for the reasons I was just trying to develop in discussion with the Chief Justice.

GAUDRON J: Well, a duty to determine whether the evidence is such as to enable you to be satisfied?

MR EMMETT: That may be, but that, of course, is not the proceeding that was sought to be removed to the Full Court for the purpose of being quashed.

GAUDRON J: Well, it has just taken its bite at a slightly later point in time.

MR EMMETT: It may be, but that may be material in terms of how that impacts on what flows from the operation of section 105A. The two propositions that I raised when I stood up are interconnected, but one has to look at the first one, having regard to the limited nature of the leave that has been granted, one still has to take into account what the facts are, even if one assumes against us that there is an error of some sort, but one must, of course, determine what is the nature of the error in order to determine whether certiorari could go irrespective of whether it will go in the particular circumstances.

The consideration of the warden's reasons, in a sense, answers some queries that were put to, I think, my learned friend Mr Zelestis, as to what would happen in practice. Whether what this warden was proposing to do is what normally happens in practice there was no evidence about. One thing is perhaps significant though, and important, is that the being satisfied - that is, the person who is to be satisfied, is somebody who one might be expected to have a considerable learning and knowledge of the lore of mining and mining practice, and that might be a reason why section 105A(3) says it is left to the mining warden to be satisfied as to these matters; leaving it to him as to how he might be satisfied. There is no suggestion that he has to have a hearing in order to determine the matter. It may well be that it is appropriate in some cases. But section 105A is really concerned with a purely administrative function.

The purpose is to determine a means of priority. The first proposition is the old priorities as between competing interests, the first in time is the one preferred. However, in order to avoid this sort of argument, in other words, in order to avoid a dispute as to who is first in time, it is left to the warden to determine who is first in time. His reasons for judgment begin at page 82 of the appeal book. At page 98 there might be some indication of an answer to the question I think your Honour the Chief Justice put, just above line 35:

In view of the fact that there was evidence common to all applications it was agreed that the exploration licence applications would be heard together but that each applicant would then present their own separate evidence in the chronological order in which they were recorded as having been lodged.

The warden then made some findings of fact at page 123, and he summarised, in relation to each of the applicants, the relevant circumstances. At 127 is where he deals with the exploration licence applications that were lodged on 15 October, and this was the unseemly rush that was referred to in the Full Court. He then makes some findings about who was first at the door; who got through the door first; who slapped down an application on the counter; who shuffled the paper around and all of those sorts of things, and he then makes some findings as to the times that were noted on each application. He does not say that is the order in which they were made, he just makes some notes that, as a fact, officers within the warden's office made a note this one was received at 17 seconds past 8.30; this one receive at 19 seconds. He is not determining the order in which they were received; he is simply recording what was written down.

His conclusions are then at page 158 and following, and what he does is recommend a number of them. First of all he recommends that exploration licence 211 be granted. So far as the respondents for whom we appear, paragraph 4 on page 159 is the relevant one. Having recommended several others, he then recommended a whole batch of exploration licences, including those of the parties, I think, represented at the bar table.

BRENNAN CJ: What is the significance of recommend for approval?

MR EMMETT: Well, he can either recommend for approval or for refusal. If one looks at section 59(3):

The warden shall as soon as practicable after the hearing of the application, transmit to the Minister for his consideration the notes of evidence and any maps or other documents referred to therein, and his report recommending the granting or refusal -

BRENNAN CJ: That is granting or refusal; this is recommending for approval.

MR EMMETT: I suspect that is probably an inaccurate way of saying what is contained in section 59(3).

DAWSON J: So that what you have is a number of competing recommendations for grant and something else has to be brought in to solve the problem.

MR EMMETT: Yes. The warden's function is a purely ministerial or administrative one. All he is going to determine is whether the technical requirements of the Act have been satisfied, and if so, probably he is bound to recommend the grant. If they are not he recommends refusal. He does not exercise any discretion as to policy or principle. That seems to have been established by the Full Court in a number of cases to which we have referred in our outline.

BRENNAN CJ: Mr Emmett, I notice that paragraphs 1, 2 and 3 recommend for grant or for refusal. Paragraph 4 changes to recommend for approval.

MR EMMETT: I see the point your Honour is making. I cannot explain it other than loose language in the writing of the reasons.

BRENNAN CJ: Well, it strikes me that somebody who is familiar with the law would understand that this might have a meaning, perhaps for the department in advising the Minister.

MR EMMETT: So far as I can say, there is no recognition in the Act of a distinction between recommending for approval and recommending grant or refusal. If there is, perhaps one of my learned friends might indicate, but the only explanation I can offer to your Honour is that it is inaccurate use of language and that it is intended to pick up the language of section 59(3). But, after having done that he then goes to the top of page 160 and says:

I conclude that the five applicants associated with the applications complied with the initial requirement at the same time -

So, here, in effect, is his conclusion of the factual matter. Having considered all of those facts, he then goes on in his reasoning in the next few pages to explain why he considers that he regarded each of these applicants as having complied with the requirements at the same time, given that they were within seconds of each other.

BRENNAN CJ: I do not wish to harp upon it, but may he not be, as it were, deferring his recommendation in relation to those applications itemised in paragraph 4, pending the determination of priority, so that, at the end of the day he intends to make a recommendation in relation to that application which, being available for approval, has priority?

MR EMMETT: That is, I suppose, a possibility, although each of the mining tenements ,though, are competing. They all relate to the same land - - -

BRENNAN CJ: I appreciate that.

MR EMMETT: - - - and whether it is a mining lease, or an exploration licence, the same question arises. So, if that were his intention he seems to be illogical in recommending exploration licence 214 for grant, but recommending the others for approval, because they are all in relation to the same lands, to the extent that they were competing priority has to be determined.

DAWSON J: Whatever he had in mind it would not make any difference to your argument, really.

MR EMMETT: We do not think so. Then, at 162 again he confirms his finding at line 15, having considered what had happened and the scheme of the legislation:

Given this scenario I conclude that each of the applicants in this matter complied with the initial requirements as set out in section 105A at the same time.

He then subsequently, having made that determination, it follows of course that, as I have submitted before, a ballot must be conducted. He then goes on to consider who should participate in the ballot. Now, that is not an issue before your Honours, that is a different matter that I do not want to buy into, because it does not concern us at this stage. Ultimately it will, of course, but not at this stage. But the order nisi - and I think that several orders nisi were sought in much the same terms - the one that was relevant to the appeal P13, is at page 201 and:

IT IS ORDERED that:

Warden P G Malone SM.....show cause why a Writ of Certiorari should not be issued against the said Warden to remove into this Court for the purpose of being quashed the decision made on the 2nd day of June -

and going over to the third line on page 202, "whereby the said Warden", dropping down two lines:

determined (inter alia) that Application 36/216 by the said MARK GARETH CREASY should take part in a ballot with three other applications for Exploration Licences -

So that the order nisi then seized upon a decision that this application should take part in the ballot, rather than attacking as such the basis upon which a finding of fact had been made that each of them satisfied the requirements at the same time.

GAUDRON J: But is there not a question of law involved in any event, to the extent that the mining warden gave a particular interpretation to "at the same time". He interpreted it to mean within a short space of time of each other.

MR EMMETT: Well, that, in a sense, begs the question, I suppose. We say that it is left to him to determine, according to his view and his knowledge of the lore and practice, whether they were at the same time. It may be that that determination might be so irrational that it could not be a real determination.

BRENNAN CJ: But, obviously, section 105 means in law what it says.

MR EMMETT: Yes.

BRENNAN CJ: Well now, if that is so, and the warden has, whether for reasons of lore or otherwise, applied some other test, then there is an error of law.

MR EMMETT: We would accept that if that were the issue then that may well be an act which is subject to certiorari.

BRENNAN CJ: There is no question of the primary facts here. We are concerned only with what is the consequence, or the court was concerned only with what is the consequence of the facts as found.

MR EMMETT: Well, in terms of whether or not certiorari could go though - - -

BRENNAN CJ: Yes.

MR EMMETT: Not whether it will go but whether it could go. The question though is, what is it that is sought to be quashed and on what basis?

BRENNAN CJ: However you describe it, the basis must have been because he erred in law in thinking that applications that were lodged seconds apart were made at the same time.

MR EMMETT: Well that, of course, may be the question, but until one determines what that question is - whether that is the issue that is said to give rise to certiorari, it is almost impossible for certiorari - - -

DAWSON J: The words "satisfied" as to something are something which are known to the law, and someone's satisfaction is different from the actual requirements in terms of law. I am not putting that very well, but it is easy to see in this situation how it could occur, because you have a whole lot of people clamouring to get into the counter, and it certainly cannot depend on who slaps their application down first as to whether they were making their application at the same time. It is a question of fact in those circumstances, and it is for him to be satisfied and that is it. If he takes into account extraneous circumstances, or does not take into account circumstances which he ought to have taken into account, then he cannot reasonably be satisfied, but that is not suggested here.

MR EMMETT: That is our point, with respect, yes.

DAWSON J: Yes

BRENNAN CJ: You say that that is a question of being reasonably satisfied, or is it a question of whether, in considering whether he is satisfied, he directs himself as to the meaning of "at the same time"?

MR EMMETT: Yes. We may have to concede - if there were sought to be established that he directed himself erroneously as to what his duty was; that might be one thing, but where the question is satisfaction, it would be necessary for somebody seeking to quash that determination to show that he acted irrationally or manifestly unreasonably.

BRENNAN CJ: Why not simply unlawfully, given the facts as established?

MR EMMETT: But what we are saying is that when one looks at the construction of section 105A, it is not concerned with anything other than what the warden determines, and that is why we say certiorari cannot go to quash that decision, except for manifest unreasonableness, or on the basis that he misdirected himself as a matter of law, which does not appear, in our submission, to be properly raised.

DAWSON J: In other words, if he decided that someone who made an application on one day and someone who made an application the next day had made their application at the same time, that would be manifestly unreasonable - - -

MR EMMETT: It may be, yes.

DAWSON J: - - - but in these circumstances it is not, it was for him.

MR EMMETT: That is really the short point, and that, in our submission, is how the Full Court treated the matter. The Chief Justice simply referred to the facts as set out by Mr Justice Rowland. Mr Justice Nicholson, at page 267, agreed with what had been said by Mr Justice Rowland at paragraphs 1 to 4 at the conclusion of his reasons. So that, if I can then take your Honours to those paragraphs, which are at pages 257 and following, and here Mr Justice Rowland is not deciding anything. He said, "Having regard to the view I have taken about the nature of the Minister's discretion, I don't need to decide these matters that were argued before us", however, he expresses a view about them. Relevantly, if one looks at 3:

"At the same time" means what it says. Applications are lodged "at the same time" if, for all practical everyday purposes, there cannot be seen to be a time differential between applications. Apparently, in this case, the Mining Registrar was so able to organise his office that there was an identifiable time differential. That will always be a matter of fact. On the face of the record, the Warden has found a time differential. Notwithstanding that finding, he has held that the marking out of the mining lease and the lodging of the exploration licence application with the Mining Registrar occurred at the same time. His ultimate decision may well be a fair one in all of the circumstances. There is no doubt that the activities.....were rather hectic, and I am reasonably confident that there was a rather unseemly rush. I am also reasonably confident that administrative procedures could alleviate this practice or, if not, the Act could be amended.

I should perhaps interpose that both of those things have since occurred. This could not occur again in relation to the circumstances that are presently before the Court because the Western Australian legislature has since intervened, both through an Act of Parliament and regulations, to ensure that this does not happen. Then, going back:

That is not, however, the issue. The Act as it exists, and as it was then administered, allowed some form of priority to the application who was first in time. A finding was made which could be given practical effect. I would assume that if the Minister's advice accords with this view and if the Minister, in the exercise of his discretion, finds it necessary to ascertain who was first in time, without a ballot, then he has the Warden's findings of fact before him.

But what Mr Justice Rowland was, in effect, saying, in our submission, was that, although the view I have taken, I do not need to decide, when you look at the facts before us, this was a decision of fact, and that is one to which certiorari would not, in any event go - or could not go, because, absent by the manifest unreasonableness, or, as your Honour the Chief Justice says, error or law.

BRENNAN CJ: I am having the greatest difficulty, as you can gather, with this argument, Mr Emmett, but the reason for my difficulty is this: that we are not concerned here with the facts of the case. Special leave has been granted on the very limited basis, namely to consider whether or not certiorari goes. Now, I appreciate that you are saying certiorari goes to what. But if one looks at what certiorari was to go to, the grounds advanced in the order nisi were that there was a lodgement at times which were different, and therefore - now, that raises to my mind a very clear question of law - therefore there was error in finding that they were lodged at the same time.

The proposition that that will always be a matter of fact, at the top of page 258, seems to me to assume that there can be no question of law arising if there is a question as to whether or not it is at the same time when there are seconds difference. I do not suggest for a moment that the decision may not be right, but in point of the principle that is involved here, if that does raise a question of law, surely certiorari must go to examine it, all other things being available.

MR EMMETT: But one must bear in mind the distinction between whether, as a matter of law, "at the same time" means one thing, and whether the warden being satisfied as to something happened at the same time, being something different. That is the distinction that we seek to draw.

BRENNAN CJ: That raises the question, does it not, as to whether the warden can reach a state of satisfaction by committing an error of law?

MR EMMETT: It may be that he cannot, but that, in a sense, is not the issue that was raised by the order nisi and I do not concede one way or the other, but that is really the point.

BRENNAN CJ: Yes.

MR EMMETT: We have referred, in our outline, to the provisions of the Act whereby the warden, if there is a question of law, may state a question for the opinion of the Supreme Court, so that there is a method available to enable him, if a question of law arises, to have that resolved, but absent that, it is a pure factual matter.

In the light of that exposition of what, in our submission, is the decision, if one can describe it as that, one then needs to look at section 105A and the scheme of the legislation to see how that impacts upon the rights of any party.

GUMMOW J: Could we just go back to 158 for a minute, Mr Emmett; the paragraph the Chief Justice referred to, after the heading, "Conclusion". The first one is a recommendation for grant; the second one for grant; the third one for refusal. They are decisions under 59(3), are they not?

MR EMMETT: Well, the first two are under 59(3), because they relate to exploration licences; the third one is in relation to a mining lease and therefore I think it is under section 74, but the language is the same.

GUMMOW J: Yes, the same system as 59. And then we come to 4, and implicit in 4 may be a decision not to recommend one way or the other under 59(3), because of the intrusion into the process of 105A.

MR EMMETT: That may be, but one asks what is - - -

GUMMOW J: Therefore there is the weaker form of expression in 4, and the reference to the ballot over at page 160.

MR EMMETT: That, as I understood, is what the Chief Justice was suggesting as a possibility, although that distinction is not one that the Act seems to recognise. So that, from that point of view, it is not totally clear precisely what the warden was intending to do after he held the ballot. It may be that he intended, having held the ballot, simply to send one application forward to the Minister. Whether he was intending to do that or not is not really to the point. The question is what the Act requires to be done. My attention has been drawn to pages 169 and 170 and that may throw some light on what he thought he was doing. At the bottom of the page, the last two lines:

Having recommended a number of competing applications for approval and provided that a ballot be held to determine priority I recommend Application E36/227 -

which, I think is Mr Stevenson's application, be refused -

on the ground that there would be no ground available once the competing application that has priority is granted.

The reason for that, as we understand it, is that that was lodged well after, so that he is, in effect, saying, "I certainly don't conclude that that was lodged at the same time" or that the requirement was satisfied at the same time.

GUMMOW J: Yes, but the subject orfthe orders nisi was the decision made on a particular day with respect to certain applications. If one looks at 184, 185, the decision made with respect to application whereby the warden determined not to recommend for approval, but determine that there should be the ballot, et cetera.

MR EMMETT: The assumption was that approval was recommending grant, pursuant to 59(3). That seems to be the assumption of the draftsman of the order.

GUMMOW J: Yes, but you seem to have, as it were, shrunk that which is the foundation of the order nisi.

MR EMMETT: I am not sure that I am following your Honour's point.

GUMMOW J: Shrunk by omitting 59 and shrunk further by truncating 105A.

MR EMMETT: No. The contention is that the order seeks to quash, in its term, a decision - in so far as the order seeks to interfere with the holding of a ballot, it seeks to quash two things; one is there being a ballot in the first place. That is not what Mr Creasy complains about. He wants there to be a ballot, but he wants to have five marbles in the ballot, rather than one marble in the ballot, and that is why the language of the order is as it is - - -

GUMMOW J: Yes. What I am concerned about is your submission that there is nothing relevantly to which certiorari could attach, because of - - -

MR EMMETT: No.

GUMMOW J: - - - what you say is the rather narrow and, as it were, automatic operation of the Act without any scope for error of law

MR EMMETT: As to those matters, that is a different matter, but the only concern that we have about certiorari is that it does not go to the question of holding a ballot as such. It may go to the question of who should go into the ballot, if it otherwise goes to the question of holding a ballot. We have not been concerned with that issue and certainly not raised it before this Court. I think Mr McCusker wants to have that subquestion determined, if certiorari will otherwise go. But if certiorari does not go to the question of holding a ballot, it may conceivably go to who goes into the ballot, but that is not the question that is being decided, and what the Full Court said was, if certiorari will not go to the question of holding the ballot in the first place, then it will not go as to that. That might be right or wrong, but there is no leave granted in relation to that issue. Mr McCusker originally sought leave in relation to that issue, but was refused it.

GUMMOW J: Yes.

MR EMMETT: So that, in a sense, he and I are on the same side, at least as to that aspect.

DAWSON J: When it is all boiled down, you say, "Well look, the only question was whether the warden was satisfied that the initial requirements were met at the same time". That may, you concede, involve a question of law, perhaps, if certain considerations were taken into account that ought not to have been, you may then have to consider what "at the same time" meant, but that was not a question which is raised here. There is no error of law demonstrated in what the mining warden did. He was able to come to a conclusion in the factual setting, without making an error of law, that the initial requirements were satisfied at the same time and, that being so, that is the end of the matter.

MR EMMETT: That is shortly so. I have to concede that - - -

DAWSON J: No one has sought to argue that he could not come to that conclusion.

MR EMMETT: That is our understanding of it.

DAWSON J: It is a matter of fact.

MR EMMETT: That is right. Certainly there was a contention about what the meaning of "at the same time" was, but that, in our submission, for the reasons your Honour has just put to me - - -

DAWSON J: Resolves itself into a question of fact.

MR EMMETT: Exactly, yes.

DAWSON J: In these circumstances.

MR EMMETT: In these circumstances, yes. And the example that was put a moment ago, if it is two days apart, well then, maybe that is manifestly unreasonable. But that must be the only test.

BRENNAN CJ: What do you say about page 165 line 15?

MR EMMETT: Your Honours put nasty things to me. Well, this is part of his reasoning, of course, as to how he concludes that he is satisfied that the requirements were complied with at the same time, and it certainly indicates his understanding of perhaps what he is required to take into account in coming to that conclusion. But the ultimate decision is one of fact, and unless it is demonstrated that there is some question of law that he misdirected himself about in the process of coming to his conclusion, our submission would be that it is not a matter for him to look at these sorts of questions; it is a matter for him, as the warden, to be satisfied one way or the other.

In the written outline we refer your Honours, in fact, to pages 161 and following. One perhaps does need to read the whole of his reasoning process, but ultimately the question is whether there is at least - it must be at least arguable, I suppose - some error of law that he has made, which has relevantly been raised by the order nisi.

Your Honours, then, having endeavoured to put forward what we say is the nature of what has happened so far, then to look at the second aspect - or the second question - that arises in the appeal, and that is, what is the nature of the priority under section 105A, to see whether, in the circumstances, anything has happened yet which could affect rights, interests or liabilities; that being the test that the court laid down in Ainsworth. We do not want to invite your Honours to change anything that is said in Ainsworth. We are content that that states the law so far as this appeal is concerned. But the scheme of the legislation begins with section 57(1), and says that :

the Minister may on the application of any person and after receiving a recommendation -

So that there is no doubt that he must receive a recommendation before the power to grant is triggered. So he may:

after receiving a recommendation.....grant to that person a licence to be known as an exploration licence.

Section 58(1)(d) at the relevant time, said:

An application for an exploration licence.....

(d) shall be lodged at the office of the mining registrar -

of the mineral field where the land to which the application relates is situated.

Under 59(1), an application is then to "be heard by the warden in open court". That, in itself, is a slightly difficult transition, so to speak, in that the application referred to in section 58 is clearly a piece of paper, it seems, whereas 59 seems to refer to a proceeding, but it may be that section 59(2) gives content to what is intended, namely a person who desires to object must lodge:

a notice of objection and he may be heard by the warden in opposition to the granting of the application.

So that a hearing, in ordinary circumstances, would simply be an inquiry as to whether the technical requirements had been satisfied, and it would only be if there is an objection that there would be something in the nature of a proceeding. Section 59(3) then imposes upon the warden the obligation:

as soon as practicable after the hearing of the application, transmit to the Minister -

the documents -

and his report recommending the granting or refusal -

There is no report yet, it seems, because the warden was proposing to hold the ballot and, for the reasons we have already looked at, it is not clear whether he was going to send all of them into the Minister, or not. Our submission is, however, that the warden's duty under section 59(3) is to consider each application and the objections to it, and then to make a recommendation in relation to each one, and to send them to the Minister, because it is the Minister who ultimately decides, as appears from section 59(4) - - -

TOOHEY J: But he has done that, has he not?

MR EMMETT: The Minister?

TOOHEY J: No, the warden.

MR EMMETT: The warden has not done anything yet. He was stopped in his tracks, in the sense that he conducted the hearings and he gave some reasons for decision, is what they are called, which he said, "I propose to recommend for approval", and we then get into the debate that I had with the Chief Justice and Justice Gummow, but he has not yet - unless that is meant to be the report - it may be that that is the report.

TOOHEY J: That is what I rather assumed, subject to the holding of the ballot. In effect, he has dealt with the applications; expressed views favourably or otherwise, but then said, "For the purposes of priority, which is really a matter for you, Minister, I now propose to hold a ballot".

MR EMMETT: That is consistent with what I was putting, that approval is really meant to be, recommend grant, pursuant to subsection (3), which would be consistent with the way in which, in our submission, he is required to approach the matter.

DAWSON J: But he has not transmitted his report.

MR EMMETT: He just has not transmitted his report yet, but it may well be that that document is his report. The document that appears in the appeal book as "Reasons for decision" will become his report and his recommendation for approval is his complying with section 59(3) in relation to each of those applications.

TOOHEY J: Because whilst the warden has to determine priority in terms of 105A(3), the actual part that priority plays is really a matter for the Minister, is it not?

MR EMMETT: Indeed, that is our submission. We just have not got to the stage of 105A having any application yet, because the warden complies with subsection (3) sends all the applications to the Minister. Subsection (4) says that the Minister, on receipt of that material, may grant or refuse the exploration licence as he determines, and that discretion applies to each of the applications that have been transmitted to him by the warden. Now, it may be that the Minister says, "Well, I am going to refuse all of these except that one". If that is the case, section 105A simply has nothing to do with this particular instance.

There is no question of priority because the Minister has exercised the clear discretion that he is given to refuse all but one and grant one. If that is the case, then what the warden has done to date is just a nothing. It just has no effect in terms of his being satisfied one way or the other. It is only if the Minister, having looked at all of these applications, says, "Well, I would refuse numbers 1, 2 and 3. However, all other things being equal, I would have granted 4 and I would have granted 5, because they both seem to have equal merit or what-have-you". It is only then that the question arises of priority, and it is at that point that section 105A comes into play.

That is why, in the Full Court, it was contended that this application was simply premature. Nothing has yet happened. It is only if one gets to the stage where the Minister decides that he cannot make up his mind, in effect, that section 105A would come into play.

BRENNAN CJ: Then the Minister can, as amongst a number of applications, reach his decision consistently with the Act without reference to the question of priority.

MR EMMETT: Indeed, that is our submission. That once they are all before him, he goes through and says, "Well, I would grant that", or, "I would refuse that one".

BRENNAN CJ: No doubt about the extent of the discretionary power. The question is the factors which he is bound to take into account. Your proposition is that priority is not a factor which he is bound to take into account.

MR EMMETT: That is so.

GAUDRON J: Or may not be.

MR EMMETT: It is our submission that it is not, and one gets that from the language of section of 105A.

DAWSON J: But all things being equal, he does have to take that - - -

MR EMMETT: Yes. If, having said, "Well, I would grant two of them", he cannot do that because it is clear that the scheme of the Act contemplates that we can only have one mining tenement of the relevant sort in relation to given land at any time, so priority has to be determined. So it is only if he would otherwise have granted - if there are two which, if they had been by themselves, he would have granted, then section 105A comes into play. It is not until then that section 105A has any work to do.

GAUDRON J: But are we not in a situation that, at least on your submission, it may or may not have anything to do.

MR EMMETT: It may, yes. We accept that it may at some time in the future. Against all of our other submissions, if there had been a manifestly irrational decision by the warden to treat applications that had been received two months apart as having been received at the same time, and the Minister decided that he would have granted each of those, then it may be that he would fall back on a ballot that was conducted that was not necessary, but the step that affects the rights or interests is the decision of the Minister to have regard to the ballot.

It is at that point that if there is something wrong with the conduct of the ballot or the circumstances in which the ballot was conducted, it would be then that it would be appropriate to seek to interfere with the Minister's exercise of power either by prohibition or certiorari or what-have-you, whatever might then be available, but it is not until then that there is any interference with any right, interest or liability within the meaning of Ainsworth. So that for all of those reasons, in our submission, the Full Court took the correct approach of dismissing the application for certiorari.

BRENNAN CJ: Thank you, Mr Emmett. Mr Zelestis.

MR ZELESTIS: May it please your Honours. My learned friend's first proposition really involves the proposition that the warden's exercise in finding who lodged first or whether two lodged at the same time was an exercise uncontrolled by the true construction of section 105A(3) and was somehow simply a finding of fact. In our submission, one cannot avoid the conclusion that the warden must make a decision of law as to the true construction of the Act.

The Act must, on its true construction, control what he did as it patently did here, and our order nisi, the terms of which appear at 177 to 179, when read as a whole, clearly identifies as the point of complaint the warden's decision that Hot Holdings should participate in a ballot rather than be accorded the priority which the document says it should have got on the true construction of the relevant subsection. But if one did want to examine in point of detail the components of 105A(3), my learned friend has omitted reference to the words in the middle of the subsection:

unless written agreement is concluded by the applicants and lodged at the office -

it has been amended now -

at the office of the mining registrar within the prescribed time.

So, in our submission, what the subsection is really saying is that, having reached the satisfaction that two or more complied contemporaneously on the proper construction of the Act, the warden must pause to see whether there has been a written agreement concluded and lodged within the prescribed time, and it is only then that he would decide to proceed by way of ballot. Now, the regulation 70B strangely prescribes as the period 60 days of the day on which the applications were lodged. Now, that cannot - - -

GUMMOW J: What was the regulation?

MR ZELESTIS: Regulation 70B. With respect, that cannot affect the true construction of the Act. The regulation assumes that you have to lodge the agreement before you have got a finding from the warden that two applicants complied at the same time. That cannot control the construction of the Act. I just draw it to the Court's attention. But in our submission, the reference to "a prescribed time" in subsection (3) is in order to confine the time so as to make it clear to the warden whether he must proceed to hold a ballot and report that to the Minister or whether he might proceed to report to the Minister that the two parties have reached agreement. So there is still an element of inquiry and decision making involved even if one adopts the approach which my learned friend adopted. Those are our submissions in reply.

BRENNAN CJ: Yes, thank you. Mr McCusker.

MR McCUSKER: Your Honours, I have little to add, save to say that the availability of a special case under the Act cannot possibly affect the available of certiorari. At page 159 of the appeal book, it would appear that the warden is saying that all of the applications to which he refers there in paragraph 4 have complied with the Act, but he is then going to proceed to make a determination of priority by reference to a ballot. As I said earlier, your Honours, in my earlier submissions, it is not stated in the Act that the determination as to priority must be the basis of the recommendation or, indeed, form part of the report, but it is clearly contemplated that the determination would form part of the report.

An error of law, it is submitted, can clearly arise from a finding of fact and the determination that there should be a ballot cannot be made, or determination of priority cannot be made without reference to the requirements of section 105A.

BRENNAN CJ: Mr McCusker, on page 169, there is a sentence that I do not understand, line 36. These are four of the applications that were dealt with in paragraph 4 earlier.

MR McCUSKER: Yes, they are, your Honour.

BRENNAN CJ: What does it mean exactly?

MR McCUSKER: What it says, your Honour, is that Mark Creasy had lodged in all five applications, that is the background to it, and only one of those applications was proposed to be included in the ballot, and the ballot that he proposed would determine the priority and because these four were excluded they would follow at the very end.

BRENNAN CJ: I see, yes.

MR McCUSKER: Yes, I think that is the reasoning there. May it please your Honour, they are our submissions in reply.

BRENNAN CJ: Thank you, Mr McCusker. The Court will consider its decision in this matter.

AT 12.31 PM THE MATTER WAS ADJOURNED