Creasy v Hot Holdings Pty Ltd & Anor P70/2000 [2001] HCATrans 540 (24 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P70 of 2000

B e t w e e n -

MARK GARETH CREASY

Applicant

and

HOT HOLDINGS PTY LTD

First Respondent

MINISTER FOR MINES

Second Respondent

Application for special leave to appeal

GLEESON CJ

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2001, AT 11.49 AM

Copyright in the High Court of Australia

MR J. GILMOUR, QC: If your Honours please, with my friend, MR C.P. STEVENSON, I appear for the applicant. (instructed by Mallesons Stephen Jaques)

MR M.J. BUSS, QC: May it please your Honours, with my learned friend, MR C.G. COLVIN, I appear for Hot Holdings Pty Ltd. (instructed by Lawton Gillon)

GLEESON CJ: There is a certificate from the Deputy Registrar that she has been informed by the Crown Solicitor's Office, the solicitors for the second respondent in this matter, that the second respondent does not propose to be heard or make any written submissions in relation to this application. Mr Gilmour, this is the matter concerning the non-compliance with provisions of the - - -

MR GILMOUR: That is our first point, your Honour, 118.

GLEESON CJ: It is the next case that deals with the bias.

MR GILMOUR: It is our friend's application on bias. We have the construction of 118 and its effect, and the construction and application of 105A(3) dealing with all other things being equal in the matter is in the hands of the Minister.

GLEESON CJ: Is it the case that legislation in 1995 has produced the consequence that since 1995 the issue that you wish to ventilate in relation to 118 is moot?

MR GILMOUR: We say not, your Honour, because we say that would be to apply retrospectivity to that subsection. That is 59(6).

GLEESON CJ: I am perhaps not making myself clear. I understand that - - -

MR GILMOUR: Into the future, your Honour, in other cases.

GLEESON CJ: I understand that the point is important to your client in relation to this case, but since 1995 it is not a point of general importance.

MR GILMOUR: Quite so. Your Honours, nonetheless it is a construction which, in our submission, would provide to the applicant, Mr Creasy, a complete basis for relief in his application before the Minister. Its construction by their Honours below in the Full Court is of course at odds with an earlier construction.

GLEESON CJ: But the decision of the Full Court, as I understand it, turned on the application of settled principles to the construction of a particular statutory provision which is no longer in force.

MR GILMOUR: The statutory provision is in force. It is just whether or not non-compliance with it is something which the Minister may disregard. That is the effect of the amendment. So the statutory provision remains in force and it is a very important provision obviously. The purpose of section 118 is to give notice to pastoral leaseholders so that they can be heard on objection to - - -

GLEESON CJ: Is it accurate to say that the statute was amended in 1995 so that the issue will not arise in relation to the statute in the future?

MR GILMOUR: I do not know the precise reasons for it, but that certainly is its effect.

GLEESON CJ: Then what, if any, issue of general importance, as distinct from of importance to your client - - -

MR GILMOUR: There is not one, your Honour. Do your Honours want me to proceed to develop our argument nonetheless?

GLEESON CJ: Yes.

MR GILMOUR: I was saying that in the earlier case before the Full Court, their Honours Chief Justice Malcolm and Justices Rowland and Nicholson, which Acting Justice Sheller points to at 52 in the application book, one has two quite different constructions, their Honours in the first case, although obiter but after full argument, finding that compliance with 118 was a precondition to the grant, whereas his Honour Justice Sheller, with whom the others agreed in the Full Court in this particular case, said it was merely a matter which the Minister might take into account.

We say that in looking at the purpose of section 118, that is to diminish the importance that the section has. It is obviously very important to pastoral leaseholders that they are given notice. That did not occur according to the terms of the Act. At that point, that is when there was non-compliance at the end of the 14-day period, Mr Creasy had a legitimate expectation that, whoever he did have to compete with for the grant of the exploration licence, he did not have to compete with Hot Holdings. To leave it, with respect, on the basis of a mere discretionary factor in the hands of the Minister is to really create a discretionary factor that has no content.

How rhetorically did the Minister inform himself or herself as to the question of non-compliance? That presumably would take into account the effect that it might have on the pastoral leaseholder. Without notice, the pastoral leaseholder would not necessarily be involved. It might even be used as a tactic on the part of an applicant abusing the system not to give notice and hope that the Minister will take it into account - that is, non-compliance - and nonetheless make the grant. We say that it is a very strong and compelling underlying purpose to protect the interests of the pastoral leaseholder which creates the section as one of a precondition to grant rather than, as the Full Court said, merely something to be taken into account in the exercise of discretion. There appears to be some challenge to the factual finding as to whether there was compliance with section 118 but that is - - -

GLEESON CJ: Yes, I noticed that but I was not sure what its relevance was to the exercise we are embarked on at the moment.

MR GILMOUR: Only that it might be argued that there was compliance and therefore what we are coming to the Court in relation to does not matter, but there is a finding by the Full Court of non-compliance. Do your Honours want me to deal now with 105A(3)? We have two points.

GLEESON CJ: Yes, go ahead.

MR GILMOUR: In relation to 105A(3), that is the section in the Mining Act dealing with priority. The Full Court did not decide the nature of that right. If your Honours turn to 84 in the application book, at paragraph 94 under the heading, "Minister's reliance on Director General's minute", this is the section 105A(3) point. Their Honours refer to an earlier decision of the High Court in Hot Holdings where, albeit obiter, the Court was of the view that in relation to the question of the nature of the right under 105A(3) in relation to priority, that the Minister was required to consider whether all other things were equal as between the various applicants and only when he decided that that was so - - -

GLEESON CJ: I just want to understand the relationship between this point and the point that we are going to deal with in the next application.

MR GILMOUR: There is no relationship between - the next application is in relation to bias. The Minister's decision was quashed by reference to that. This is simply the question of the process which the Minister undertook when considering the applications for the exploration licence and whether he should have and whether he did consider - - -

GLEESON CJ: If you look at page 85, paragraph 96 - - -

MR GILMOUR: That is where his Honour Justice Sheller said:

Their Honours acknowledged that it was unnecessary to decide the issue and in my opinion it is unnecessary to decide it on this application.

That is our point of appeal really, your Honours. His Honour did so, we say, by asking himself the wrong question. Justice Heenan at first instance concluded that by reference to the covering letter - and perhaps it would be appropriate to hand that up to your Honours. Do your Honours have the letter from the Minister of the - - -

GLEESON CJ: What page is it?

MR GILMOUR: It is a separate supplementary material which was provided to your associate.

GLEESON CJ: It is called "Supplementary Material", is it?

MR GILMOUR: Yes, "Applicant's Supplementary Material".

GLEESON CJ: I am not sure what that is a reference to. I am not conscious at the moment of having a document entitled "Applicant's Supplementary Materials". Could you hand up your copy.

McHUGH J: This document was in evidence, I take it?

MR GILMOUR: Yes, your Honour, and the subject of findings. It is the letter the subject of the finding at paragraph 96.

GLEESON CJ: What is the point you are making about this?

MR GILMOUR: The point is that the Full Court really adopted the same approach as the judge at first instance, Justice Heenan, that it was unnecessary to decide the question of whether the Minister had considered whether all things were equal, because in his letter of 10 August 1998 in which he rejected our application for the exploration licence, in the second paragraph he said:

I would advise that after consideration of the Warden's notes of evidence, his recommendations and all of the submissions and comments lodged, I have determined that subject to compliance with the provisions of the Native Title Act I will grant application for Exploration Licence 36/215 by Hot Holdings Pty Ltd.

In the Full Court that was picked up at 85, paragraph 96. At about line 24 his Honour said:

Further, the papers before the court showed that the Minister gave ample opportunity for the provision of submissions, that the issue as to whether all things in respect of the competing applicants were equal was canvassed at length in the submissions and that the minute of the Director General referred to those issues. In those circumstances, there was no basis for concluding that the Minister failed to take all relevant matters into consideration before deciding to grant the application of Hot Holdings.

Our submission is this, that the question posed by his Honour Justice Heenan in the Full Court was the wrong question. The question is not whether all relevant matters were taken into consideration by the Minister. The question is whether or not the Minister considered whether all other things were equal as between the applicants, as was the construction put on the section - - -

GLEESON CJ: He called for submissions on that point, did he not?

MR GILMOUR: He did, and I would like to take your Honours to that. You see at paragraph 96 that his Honour relied upon the content of the minute of the Director-General which it says "referred to those issues", meaning the issues of all other things being equal. That starts at page 7 of the application book. This, if you like, your Honours, is the instructive document prepared by the departmental officers that goes to the Minister, those officers having had the benefit of the other primary documents, namely what was before the warden, the evidence and the parties' submissions. This summarises it, it puts it in a cogent form and it goes up to the Minister.

Relevantly, after initial introduction, if your Honours go to page 10, you will see that the Director-General who signs this minute, paragraph 13 on that page says:

Arising from the exchange of submissions and comments, the points that I consider to be central to your determination of these applications can be summarised as -

He deals firstly with Mr Creasy. That is at page 10 of application book. The first bullet point is:

the Minister must consider all of the applications lodged at the same time and the winner of the ballot will succeed only if all applications are equal -

That is a confused statement, with respect, as to the task confronted by the Minister. The Minister was required to consider whether all things were equal as between the applicants.

GLEESON CJ: On page 85 at line 25 Justice Sheller gives the reasons for his decision in relation to this issue, is that right?

MR GILMOUR: He does, but he was wrong, with respect.

GLEESON CJ: It is a matter of fact, is it not?

MR GILMOUR: It is an error of fact. It is obvious by reference to the document.

GLEESON CJ: It is a fact on which Justice Heenan found in a certain way and then the Full Court found in a certain way, upholding Justice Heenan's decision. What is the issue of law that arises?

MR GILMOUR: Your Honour, the issue of law emanates from what was plainly an error of fact. It is a simple matter, with respect.

GLEESON CJ: Are you saying we should give special leave because it is an obvious error of fact?

MR GILMOUR: Yes, it is an obvious error of fact and, because it is an obvious error of fact, we can see that the Minister never asked himself the right question. At page 11 at b) at the top, he goes through the submissions by Hot. There is no reference there to either section 105A(3) or even the concept of "all other things being equal" and then, to round it off, the Director-General at paragraph 14 at line 25 on page 11 says:

I consider that the key issues arising from the court proceedings and submissions are -

This is calling to the attention of the Minister the key issues. (i) is section 118, (ii) is 59(6) - that is the amendment. He does not draw to the attention of the Minister the task which the High Court in the earlier Hot decision said he is confronted by, namely considering whether all other things are equal.

The rest of the minute concerns section 118 and section 59(6) and it ends at page 17 by saying:

Should you concur with my recommendations, suggested letters to the parties are attached for your consideration please.

One of those letters is the letter which I just showed your Honours by inference, which letter upon examination picks up what are set out in the key issues. If your Honours look at the letter, you see in the fourth paragraph it refers to section 118 and on page 2 it again refers to section 118 and section 59(6). That is the amendment, and then there is a reference to section 64, not particularly relevant. What you do not find in the letter and you do not find in the key issues is either reference to section 105A(3) or a reference to the task of considering whether all other things are equal.

Their Honours in the court below and Justice Heenan did not consider that in any detail. They make the blanket finding which, with respect, is wrong. The Director's minute does not relevantly refer to section 105A(3). The finding says that it does. It does not. So we end up with the position, your Honours, where we do not know what it is that the Minister did. If he had considered all other things were equal, presumably he would have said so if he had been alive to the issue, a fundamental first step in the process before affording priority, according in this case, by ballot. We do not know what he did and we have every reason to think that he merely followed what the Director-General drew his attention to, and that was not one of the things.

It is a point of general importance, your Honours, because there is similar legislation in the Northern Territory and Queensland concerning priorities, so for this Court to set out authoritatively what it said obiter in an earlier Hot Holdings decision would be instructive not only in this case but for future cases dealing with mining legislation and application for tenements in this State but also the Northern Territory and in Queensland. If your Honours please.

GLEESON CJ: We do not need to hear you, Mr Buss.

As to the issue concerning section 118, the decision of the Full Court of the Supreme Court of Western Australia turned on the application of settled principles for the construction of a particular statute and the statute in question was amended in 1995 so that the issue will not arise in relation to the statute in the future. As to the section 105A issue, the decision turned on findings of fact.

The case raises no issue suitable for a grant of special leave to appeal and the application is refused with costs.

AT 12.08 PM THE MATTER WAS CONCLUDED