Hot Holdings Pty Ltd v Creasy & Ors P58/2001 [2002] HCATrans 170 (17 April 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P58 of 2001

B e t w e e n -

HOT HOLDINGS PTY LTD

Appellant

and

MARK GARETH CREASY, ARIMCO MINING PTY LTD (LIQUIDATOR APPOINTED) and ORESEARCH NL

First Respondents

MINISTER FOR MINES

Second Respondent

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 17 APRIL 2002, AT 10.19 AM

(Continued from 16/4/02)

Copyright in the High Court of Australia

GLEESON CJ: Mr Buss, just before you commence your argument in reply, could I just get something straight procedurally. There were other issues in the Full Court, but there was a limited grant of special leave to appeal. The Full Court made an order for certiorari quashing the decision of the Minister.

MR BUSS: Yes.

GLEESON CJ: Do we have that order?

MR BUSS: Page 255, your Honour.

HAYNE J: Well, which paragraph is it that contains the order absolute?

MR BUSS: The order simply allowed the appeal from his Honour's decision in paragraph 2 and his Honour, of course, had declined to grant an order nisi on the basis that there was not an arguable case. The Full Court, plainly enough, has found that there was an arguable case and - - -

HAYNE J: But at page 253 Justice Sheller proposed an order making absolute the order nisi for certiorari. Was such an order taken out?

MR BUSS: The short answer is, I do not know the answer to that question, your Honour.

GLEESON CJ: There appears to be a disconformity between the order on pages 255 and 256 and the orders opposed on page 253.

MR BUSS: Yes, that is right, your Honour. I can only assume, and it is an assumption because ordinarily the orders would be extracted, as they were in this instance, by the successful appellant, that is the first respondent in the appeal before your Honours, Mr Creasy, and for reasons that are not understandable the orders that were extracted do not appear to include an order that a writ of - - -

HAYNE J: There were, in truth, two proceedings before the Full Court, were there not? There was first an appeal against the refusal of the primary judge to grant an order nisi on certain grounds, the appeal being founded in the contention that the grounds were arguable.

MR BUSS: Yes.

HAYNE J: But the order nisi, which was made by the primary judge, was an order nisi returnable before a Full Court, that appearing at pages 9 and 10 of the appeal book, particularly line 2 of page 10, "show cause before the Full Court".

MR BUSS: Yes, and ordinarily one would expect, where the Full Court has found that there was no merit in the matter, the subject of the order nisi, there would be an express order that the order nisi be discharged.

GUMMOW J: That is the problem.

MR BUSS: Yes.

GUMMOW J: Now, what would we do if you were successful; how would things work out?

MR BUSS: If we were successful then the orders that we had proposed at the end of our written submissions at page 18 were that the orders made by the Full Court of the Supreme Court on 4 August 2000 quashing the Minister's decision be set aside - - -

GLEESON CJ: Where are those orders?

MR BUSS: The only orders appear to be those at 255 and 256 so that order is based on a false premise so we would need to move for an order that under (a) that simply the orders made by the Full Court on 4 August 2000 be set aside and paragraph (b) on page 18 of our outline would then follow if this Court were then to make an order that the first respondents' application for an order nisi be dismissed. The other orders proposed in paragraph (c) would appear to be in order and the balance simply deal with costs but in addition to those orders there would need to be an order that the order nisi - - -

GLEESON CJ: Mr Buss, is it the case that the orders referred to in your proposed orders are not the orders that appear on page 255 and 256; they are the orders that appear on page 253?

MR BUSS: Yes, that is right.

KIRBY J: So this is not a case where there is a incompatible order of the Full Court in the form of the order taken out. It is simply an omission.

MR BUSS: Yes, that is right, your Honour.

KIRBY J: Presumably that could be cured by the Full Court ordering that there be added to its orders, in the event that you fail, the order quashing, which is obviously what Justice Sheller intended.

MR BUSS: Yes.

KIRBY J: The parties seem as usual to have concentrated so much on costs that they forgot the substance of the matter between them.

MR BUSS: Yes.

GAUDRON J: Now, there were, in fact, two proceedings, were there not, before the Full Court?

MR BUSS: Yes, there was an appeal against Justice Heenan's refusal to grant an order nisi to enable the bias allegation to be reviewed - his Honour held that that was not reasonably arguable - and there was an appeal brought by the first respondents against that order.

GAUDRON J: Yes.

MR BUSS: The second matter that was before the Full Court was the order nisi which Justice Heenan granted in relation to - - -

GAUDRON J: Did he grant it or refer it to the Full Court? Did he refer the application?

HAYNE J: To grant.

MR BUSS: He granted the order nisi in that on page 10 in paragraphs 1, 2 and 3. The orders were drafted in terms of calling on the Minister to show cause before the Full Court why a writ of certiorari, or a writ of mandamus, et cetera, should not issue to quash the decision made by him, which is the familiar way in which prerogative writ proceedings would be dealt with in the Supreme Court of Western Australia. Ordinarily, there would be an order nisi hearing before a single judge, and unless the matter was of particular urgency and had to be dealt with by a single judge, it would be referred to the Full Court.

GLEESON CJ: Mr Buss, let us contemplate the possibility that you succeed.

MR BUSS: Yes, your Honour.

GLEESON CJ: In that event, we would make an order allowing the appeal, setting aside the orders made by the Full Court of the Supreme Court of Western Australia and it would not matter that those orders were incomplete or imperfect in the respect already mentioned because, on the hypothesis I am now considering, the order that was omitted should not have been made anyway.

MR BUSS: Yes.

KIRBY J: If you fail, then it would simply be a matter of dismissing the appeal in this Court and leaving it to the parties to move the Full Court, that is to say, the first - - -?

MR BUSS: Yes, that is correct, your Honour, because the only issue that was live before the Full Court which is live before this Court is the bias issue. So if we were to succeed, then the appeal should be allowed and - - -

KIRBY J: There is no issue that it is still outstanding for trial in the event that you succeed on the matters that you have argued in the Full Court?

MR BUSS: No, nothing outstanding in the Full Court. As your Honours will recall, the first respondents did make application for special leave to appeal to this Court in relation to some of the matters on which they lost in the Full Court and special leave was refused. So, as we apprehend it, that is the end of the matter. If this Court were to allow our appeal, the practical result would be that the Minister should grant or has already purported or indicated that he intends to grant the expiration licence to Hot Holdings. If we lose, then the matter ultimately would be remitted to the new Minister for fresh determination.

GLEESON CJ: But if you lose, the matter would also need to go back to the Full Court to perfect its order.

MR BUSS: Yes, it would because it would need to go back to the Full Court in order for it to make the order nisi absolute in relation to the bias allegation, that is true, your Honour.

GLEESON CJ: Yes. Perhaps all counsel could within seven days of today put in written submissions in relation to the matter that has been discussed with you this morning and if they are in agreement as to the courses to be followed in either event, that is, in the event of your success or the event of your failure, then that agreement could be recorded. Would you pass that message on to Mr McCusker?

MR BUSS: Yes, I will ensure that is passed on to Mr McCusker immediately.

GLEESON CJ: Yes, Mr Buss.

MR BUSS: Yes, thank you, your Honour. Your Honours, the first respondent, in our submission, has not formulated a rule, let alone a new rule, which when applied to the facts of this case as found by the trial judge in the Full Court would require that the appeal be dismissed. The fundamental flaw in the first respondent's case, in our submission, derives from the manner in which the facts were found below and none of those facts have been challenged before your Honours.

There was reference to a recent decision of the House of Lords which was, of course, the decision in Porter v Magill where the House of Lords recanted from the test of apprehended bias that it had adopted into Gough and fell into line with the test which was adopted by this Court in Webb. There was also reference in argument to section 10.

KIRBY J: What is the citation for that case?

MR BUSS: It is in our written submissions, your Honour. I will just pick it up.

KIRBY J: It is handy to have these things on the transcript.

MR BUSS: Yes[2001] UKHL 67; , [2002] 2 WLR 37 and the critical pages appear to be 70, 83 to 84 and 100. Your Honours, reference was made in the course of the submissions of my learned friend, Mr McCusker, to section 10 of the Mining Act 1978 which I had also touched upon, concerning the role of the Minister as a corporation sole. The significance of a Minister being constituted a corporation sole in the context of statutory duties and obligations similar to those of the Minister in this case was considered by this Court in Crouch v Commissioner of Railways for Queensland. Unfortunately, I have not been able to find a citation for it but it was a decision of this Court in the late 1980s in relation to the Commissioner of Railways for Queensland, wherein the Court explained the distinction between the corporation, of which the Minister was the human manifestation, and also the role of the natural person occupier of the office for the time being.

HAYNE J: I suspect you are referring to [1985] HCA 69; 159 CLR 22.

MR BUSS: I suspect I am, your Honour. It seems a very marginal point, but I draw that authority to your Honours' attention. My learned friend then dealt with three or four factual matters that I should briefly refer to, simply to put them in proper context. For example, reference was made to the significance of Miasi's initials appearing on the minute. The explanation for that appears in the affidavit of Mr Burton at page 137, in paragraph 12, where Mr Burton said:

Mr Miasi's initials appear at the foot of the final minute because of his contribution to the draft minute. It is standard practice in the Mineral Titles Division for the typist to record the initials of the writer/s on any minutes.

My learned friend, Mr McCusker, also made some submissions as to what Mr Hicks did, compared with what Mr Miasi did, and what each of them did is readily apparent from Mr Hicks' affidavit. At pages 115 to 117 a reproduction of what was in the Miasi handwritten draft is set out, from pages 115 to 117, and then Mr Hicks said what he did. He said in paragraph 7 that:

Mr Miasi's handwritten draft also contained headings for details of the Warden's Court proceedings, Supreme and High Court proceedings, Amendments to the Mining Act and Regulations 1981, Ballot and submissions to be inserted. I drafted the paragraphs under those headings.

He then annexes a copy of the draft minute he prepared and that minute can been seen commencing at page 118 and continuing until page131. So it is plain enough the work that Hicks carried out and the extent which that was more detailed and expansive than any work that Miasi did can readily be apparent from observing those pages of the appeal book.

KIRBY J: But the suggestion is that the critical statement that there is no reason why you should not approve of Hot Holdings was Mr Miasi's work and we have no affidavit from Mr Miasi and therefore, by conventional rules of inference, one would infer that nothing Mr Miasi could say, he being the crucial witness in the allegations, would have advanced the case for your client.

MR BUSS: Well, in our submission, the position with respect to that aspect, your Honour, is that the recommendation was one that was decided upon by Phillips and Burton in their meeting and it was then delegated by them to Miasi, who was lower in the pecking order in the department, to produce a draft which reflected that decision. So, in our submission, based on the findings of the courts below, the true position is as we have now submitted and not as put to the Court, with respect, by my learned friend, Mr McCusker.

As to your Honour's point about Miasi not having filed an affidavit, of course one must remember that all of these affidavits were filed on behalf of the Minister. None of these affidavits were filed by my client and, in any event, we would say that the first respondent did not object to the affidavits of Burton and Phillips being read, they did not require them for cross-examination. In those circumstances, no adverse inference can be drawn against my client from the fact that Mr Miasi did not swear an affidavit. In any event we would say that if Mr Miasi had sworn an affidavit deposing to whether the pecuniary interest that he held had in any sense affected the manner in which he had discharged his duties, that would not be receivable, it would be irrelevant because it would be evidence by someone holding a pecuniary interest which would be affected by insidious - - -

KIRBY J: I think that is a bit rich, that argument. You have the main person who is alleged to have contaminated the Minister's processes of conclusions and he does not give an affidavit. I mean, speaking for myself, I regard Mr Phillips' son as irrelevant or nearly so, but Mr Miasi is in a quite different situation; he is the person who is alleged to have had the significant interest and to have contaminated the process and we have no affidavit from him.

MR BUSS: Well, that is true, but the point I was endeavouring to make - - -

KIRBY J: You cannot say that he could not have sworn an affidavit because he had a financial interest, that is the very point in issue.

MR BUSS: No, that was not quite the point I was endeavouring to make, which was where someone with a pecuniary interest gives evidence to the effect that they did hold a pecuniary interest but it did not affect them in the discharge of their duties, that is not receivable. It would be given no weight because of the insidious nature of bias.

KIRBY J: No, but he could have said, "I attended the meeting with Mr Phillips. Mr Phillips said that we should word it this way. I recorded that. That was my sole role in this." He would then have been exposed to questioning and he did not expose himself to questioning.

MR BUSS: That may well be so, your Honour. However, the critical thing is that the role of Miasi was deposed to in the affidavits of Burton and Phillips and the first respondent was content to allow them to be read unchallenged and without requiring the deponents to be produced for cross-examination.

What flows from that is that, plainly, the first respondent was content to run the case on the basis that those issues were not explored. Admittedly, had there been an affidavit from Miasi, they could have been explored with Miasi, but they equally could have been explored with Burton and Phillips and the first respondent - - -

McHUGH J: The Jones v Dunkel inference only lies against the party whom you could expect to call. After all, it is the respondent who is making the allegation of invalidity, making the allegation of bias and who relied on Miasi to prove that bias and invalidity. So, at the moment, I do not see why there was any greater obligation on you to call Miasi than your opponent.

MR BUSS: Yes.

KIRBY J: It is a bit unrealistic to expect the first respondent to call Mr Miasi.

McHUGH J: Well, realistic or unrealistic, is beside the point. The question is whether or not you were expected to call the witness and whether or not you should have an adverse inference drawn against you.

MR BUSS: And in our submission we should not because Miasi was in no view in our camp and he was as equally available to the first respondent by subpoena as he would be to my client by subpoena.

KIRBY J: He was very much in the Minister's camp. He was an officer of the Minister's department.

MR BUSS: That is true, but we are not - - -

KIRBY J: And it is the Minister's decision which is under attack.

MR BUSS: That may be but - - -

KIRBY J: Which you are supporting - the validity of which you are supporting.

MR BUSS: We are supporting the validity of the Minister's decision. That is true.

KIRBY J: The Minister did not call Mr Miasi his officer. Was it ever indicated whether Mr Miasi continued as an officer of the department? Was that evidenced in the trial? Was there any suggestion he had been, as somebody suggested in the Court yesterday, dismissed for having failed in his duties of candour to the Minister and the process?

MR BUSS: Not that I can recollect, your Honour. It certainly was not dealt with in the evidence because the affidavits were simply read.

KIRBY J: As far as we know, he was and is still a member of the department or an officer of the department.

MR BUSS: I do not know that. My learned friends for the Minister may be able to assist your Honour but I do not know the answer to that question.

KIRBY J: I do not want to know anything that is not proved by the evidence.

MR BUSS: Yes. Well, to the best of my knowledge there is no evidence, certainly none in the appeal book before your Honours, and I cannot recall whether the point was touched on in the Full Court. There are one or two other brief points. My learned friend, Mr McCusker, referred to contact between Stevens and Pullinger in relation to the lodging of submissions with Miasi. It is important to understand that in the context of Stevens' evidence at pages 112 and 113 of the appeal book, in paragraph 3 Mr Stevens recalls a telephone conversation with Mr Pullinger about the:

deadline for the lodgement of submissions -

In paragraph 4:

On behalf of the Minister I agreed to an extension of the deadline and requested Mr Pullinger to contact Vic Miasi, Manager Tenure Branch, at the Department of Minerals and Energy (the Department) in that regard.

My advice to Mr Pullinger to contact Mr Miasi was entirely consistent with the advice I regularly give members of the public who contact the Minister's Office regarding matters pertaining to specific mining tenement applications.. In my view the Manager Tenure Branch is the appropriate officer to initially receive such enquiries and to then decide on appropriate action.

I also recall indicating to Mr Pullinger, whether during that March 19998 telephone call or during another call at or about that time, that the submissions were being handled by Mr Miasi. This advice again, was given on the basis that Mr Miasi, is the Manager Tenure Branch. I was not aware at that time that the submissions were being handled by the Department's then Manager Special Projects, Roy Burton.

It puts that aspect into context.

Finally, a question was put by your Honour the Chief Justice to my learned friend, Mr McCusker, about how the first respondents put their case. I think the question was really how they put their case before this Court as distinct from how they put their case before the Full Court, on the question whether they were alleging that the Minister had merely rubber-stamped the minute of the Director-General for Mines. At 251 of the appeal book at paragraph 94 it is plain that the rubber-stamping argument was the case that was run in the Full Court, and that is apparent in paragraph 94 from a reading of the first 10 lines of the judgment.

KIRBY J: I do not quite follow the point you are making there. Is it the point that they resiled from the rubber-stamp suggestion?

MR BUSS: Evidently. That is how I would understand that. When one looks at paragraph 94 of Justice Sheller's judgment and also bearing in mind the terms of their motion for relief on page 4 of the appeal book that the rubber-stamping argument was run before the Full Court, and the outcome of that argument is summarised in paragraph 96 on page 252 of the appeal book, which I read in substance to your Honours yesterday.

Your Honours, unless there are any other issues you wish to raise with me, those are our submissions in reply.

GLEESON CJ: Thank you. We will reserve our decision in this matter.

AT 10.46 AM THE MATTER WAS ADJOURNED