Administrative law - Application for an order to show cause - Natural justice - Whether applicants had a right to be heard prior to a decision to conduct a ballot under s 105A Mining Act 1978 (WA) - Whether time should be extended for motion to show cause order - Whether show cause order should be made absolute in the first instance

Mining Act 1978 (WA), s 105A

Rules of the Supreme Court 1971 (WA), O 56 r 1 and r 11

Motion to show cause order granted and order absolute made for a writ of certiorari to quash warden's decision

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Re Smith; Ex parte Rundle (1991) 5 WAR 295

1 On 4 December 2009 the applicants lodged an application for an exploration licence at the Mount Magnet registry of the Department of Mines & Petroleum. On the same day, the respondent also lodged an application for an exploration licence at the registry in respect of the same land.

2 On 11 February 2010, Warden Richardson ordered that a ballot between the applications be conducted pursuant to s 105A of the Mining Act 1978 (WA) (the Act). The Warden endorsed her order with a note that she was satisfied from an examination of the files for each application that the applicants and the respondent had complied with the 'initial requirement' at the same time.

3 The applicants contend that they had a right to be heard on the question of whether the respondent had satisfied the initial requirement at the same time as they had satisfied that requirement and that the warden's decision to conduct a ballot should be quashed as they were not given an opportunity to be heard on that question.

4 The court was advised at the hearing of the applicants' motion for an order to show cause under O 56 r 1 of the Rules of the Supreme Court 1971 (WA) that neither the warden nor the respondent intended to appear at the hearing of the show cause order if such an order was made. Accordingly, the applicants invited the court to exercise a discretion conferred by O 56 r 1(6) to grant an order absolute in the first instance for a writ of certiorari.

5 I have decided that an order absolute for a writ of certiorari removing into this court for the purposes of quashing the warden's decision to conduct a ballot should be granted.

6 The applicants' motion was supported by an affidavit sworn by Garry Hamilton Lawton. Mr Lawton is the applicants' solicitor. The following account of the circumstances relevant to the motion is taken from Mr Lawton's affidavit and the attachments to that affidavit.

7 At 8.30 am on 4 December 2009, certain graticular blocks that had been surrendered from exploration licence 59/1135 under s 65(1)(a) of the Act were released pursuant to s 65(5). On the same day, the applicants and the respondent lodged applications for exploration licences over that ground at the Mount Magnet registry (the Applicants' Application and the Respondent's Application). Each application was endorsed by the mining registrar as having been received at 8.30 am.

8 On 11 December 2009, the applicants lodged an objection to the inclusion of the Respondents' Application in any ballot and to the grant of the application (the Objection). By letter dated 29 January 2010, the mining registrar at Mount Magnet advised the applicants that the Respondent's Application and the Objection had been listed for mention in the Mount Magnet Warden's Court on 11 March 2011. Accompanying the letter was a service copy of the Objection bearing an endorsement that it had been received on '15 December 2010' (the reference to 2010 was obviously a clerical error). The Objection had been made within the time limit prescribed by reg 146 of the Mining Regulations 1981 (WA).

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, unless written agreement is concluded by the applicants and lodged at the office of the mining registrar within the prescribed time, be determined by ballot conducted by the warden on a date to be determined by the warden and notified to the applicants.

10 Section 105A(4) of the Act provides that a reference to compliance with the initial requirement in relation to an application for an exploration licence is a reference to lodging that application at the office of the mining registrar.

11 Regulation 70B of the Regulations provides that any written agreement made for the purposes of s 105A(3) of the Act shall be lodged within 60 days of the day on which the applications for licences or leases were lodged.

12 On 11 February 2010 (being more than 60 days after the date on which the applicants and the respondent lodged their applications for exploration licences), Warden Richardson ordered that, 'in the absence of any agreement being lodged as provided for in reg 70B of the Mining Regulations, priority shall be determined by a ballot to be conducted at Mount Magnet at 9.30 am on Thursday, 11 March 2010'. The warden's order was prefaced by a statement that she was satisfied from an examination of the relevant files that the applicants and the respondent had each complied with the initial requirement at the same time.

13 The applicants and the respondent were not immediately informed of the warden's decision. On 15 February 2010, the applicants' solicitors served the Objection on the respondent and on 19 February, the respondent's solicitors filed a notice of appointment. Subsequently, the respondent's solicitors requested particulars of the Objection.

14 On 11 March 2010, the warden conducted a ballot with the Respondent's Application being first drawn. A directions hearing in the Respondent's Application and the Objection was held by telephone later that day. The warden advised at the hearing that the ballot had been conducted that morning.

15 Notwithstanding that advice, further directions hearings in the Respondent's Application and the Objection were subsequently held. It is not clear from Mr Lawton's evidence whether the Warden and the parties were proceeding at that time on an assumption that the decision to conduct a ballot, and the effect of the outcome of the ballot, could be reconsidered once the Objection to the Respondent's Application had been heard.

16 The directions hearings culminated in the Respondent's Application and the Objection being listed for a substantive hearing on 30 July 2010. However, that hearing was vacated and subsequently, the warden advised that she had ordered that the matter be transferred to the Perth Warden's Court for hearing by another warden.

17 The matter was mentioned before Warden Wilson in the Perth Warden's Court on 29 October 2010. Directions were made programming the Respondent's Application and the Objection to a hearing to be held on 17 December 2010. However, the matter was relisted before Warden Wilson on 8 November 2010. At that hearing, the warden expressed doubt over whether he could consider that part of the Objection concerning when the respondent satisfied the initial requirement in view of the finding made by Warden Richardson on 11 February 2010 that the applicants and the respondent had simultaneously complied with the requirement. The hearing was adjourned to enable Mr Lawton to obtain instructions from the applicants.

18 On the following day, Mr Lawton advised the warden that his instructions were to ask for the matter to be referred back to Warden Richardson for her 'to advise of the basis upon which she was prepared to continue to hear the objection notwithstanding the existence of her order of 11 February' (annexure GHL 28 being transcript of the hearing on 9 November 2010 at page 2). However, Warden Wilson declined to make that order. He expressed the view that the appropriate course was for the applicants to seek prerogative relief if they wished to challenge the decision by Warden Richardson to conduct a ballot.

Did the applicants have a right to be heard?

19 In Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, the High Court granted special leave on the question of whether 'certiorari lies to challenge a decision by a warden to conduct a ballot for the purposes of determining the party entitled to the priority right conferred by s 105A(1) of the Mining Act 1978 (WA)' (158). At issue was whether the warden's decision to conduct a ballot had a 'discernible or apparent legal effect' on the rights of the parties whose applications were the subject of the ballot. A majority of the High Court (Brennan CJ, Gaudron and Gummow JJ) held that the warden's decision did have such an effect.

20 Briefly, the majority's reasoning involved the following steps:

(a) A warden is required by s 59 of the Act to forward to the minister 'for the minister's consideration' a report recommending the grant or refusal of an exploration licence. The report must contain the warden's reasons for the recommendation. The minister may then grant or refuse the licence as s/he thinks fit and irrespective of the warden's recommendation.

(b) A preliminary decision or recommendation will have the requisite legal effect upon rights to attract certiorari if it is one to which regard must be paid by the final decision-maker (165).

(b) Where a ballot is conducted, the warden's report will advise the minister of the result and indicate the basis upon which the warden was satisfied that at least two applications had simultaneously fulfilled the initial requirement for the purpose of s 105A of the Act (170 - 171).

(c) The minister was not bound to grant the application of the first in time or the winner of the ballot. However, the minister was bound to consider the warden's report and recommendation. Consequently, the minister would be required to take into account the outcome of the ballot as part of her/his decision-making process, along with the other circumstances concerning how it came to be ordered (174, read with the observation at 171 that the view expressed by Nicholson J in the Full Court was correct).

21 It is relevant for the purposes of deciding this application to note what the majority said regarding the meaning of the expression 'the right in priority over every other applicant' as it appears in s 105A of the Act. The majority noted that two interpretations of that expression were suggested. First, the minister was required to commence the decision-making process by considering only the application that attained priority through the ballot. A subsequent application would only be considered if the minister refused to issue a licence on the first application.

22 The second possible interpretation of the 'right of priority' was that it was 'no more than a right to grant if there are competing applications and "all things are equal"' (169).

23 The majority did not consider that it was necessary to finally decide which interpretation was correct. They did, however, indicate that the second interpretation appeared to be preferable. The point for this matter is that on either view, the 'right to priority' granted to the application first drawn from a ballot is a right that has a discernible legal effect in the decision-making process culminating in the grant or refusal of an exploration licence. Plainly, it may confer a tangible benefit on the applicant holding priority.

24 In my view, there can be no doubt that the requirements of natural justice apply to a decision by a warden to conduct a ballot under s 105A and accordingly, to the means by which the warden satisfies herself/himself that applications for mining tenements in respect of the same ground simultaneously satisfied the initial requirement. In Hot Holdings, the majority observed at 168 that:

The 'decision' to order a ballot follows automatically from satisfaction as to initial compliance at the same time. They are aspects of the same decision. In effect, a complaint about the ordering of a ballot is a complaint directed to the warden's satisfaction as to initial compliance at the same time.

25 Further, the majority emphasised what was said by the High Court in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 regarding certiorari: the function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. Consequently, for certiorari to issue it must be possible to identify a decision that has a discernible or apparent legal effect or consequence upon rights. It is that legal effect or consequence that may be removed to a superior court for quashing. It could hardly be contended that the decision to conduct a ballot had a sufficiently discernible or apparent effect on legal rights to attract prerogative relief but not the requirements of natural justice.

26 It is not necessary in reaching that conclusion to consider what, if any, role the notion of 'legitimate expectations' may still have in ascertaining when the requirements of natural justice apply to administrative decision-making following the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550, Mason J stated at 584, 'the law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention' (emphasis added). It is clear from Hot Holdings that a warden's decision to conduct a ballot, and the antecedent decision that there has been simultaneous fulfilment of the initial requirement, affects the rights and interests of the relevant applicants.

27 The applicants had indicated by the Objection that they sought to contest the question of whether the Respondent's Application had been lodged simultaneously with the Applicants' Application notwithstanding the time of lodgement that had been recorded on each application by the mining registrar. The Objection indicated that the applicants sought to challenge the very basis upon which the warden had concluded that each application satisfied the initial requirement; that is, the time of lodgement of the Respondent's Application as endorsed on the application.

28 Clearly, the applicants were not given an opportunity to be heard on whether the Respondent's Application satisfied the initial requirement at the same time as their application for the exploration licence. It is not relevant to speculate on how the warden came to make the decision to conduct the ballot in the face of the Objection; no doubt it was due to some administrative error or oversight.

29 Section 59(1) of the Act provides that a person who wishes to object to the 'granting of an application' for an exploration licence shall lodge a notice of objection. Where a notice of objection is lodged, the warden is required to 'hear the application for the exploration licence' and may give any person who had lodged a notice of objection an opportunity to be heard. Consequently, the procedure under s 59 is directed to the hearing of the application for an exploration licence; it is not expressly concerned with whether applications for licences were simultaneously lodged so that a ballot to determine priority must be conducted. There is, in fact, no procedure prescribed by the Act or the regulations by which the warden is to satisfy herself/himself that the initial requirement was met at the same time by two or more applications (reg 90A of the Mining Regulations is intended to assist the warden in determining when the initial requirement was satisfied but it is obviously not a procedure of the kind here being considered).

30 As the majority in Hot Holdings indicated, the warden is required to include in her/his report made under s 59 of the Act an indication of the circumstances in which a ballot was conducted and the result. It may be that a hearing under s 59(4) is a convenient way of determining whether a ballot must be conducted where there is a dispute over whether two or more applications for an exploration licence simultaneously satisfied the initial requirement. However, the Act does not mandate such a procedure.

31 What will be required to give an applicant an opportunity to be heard on the question of whether a ballot must be conducted will depend on the particular circumstances. For example, it may be appropriate for a warden to examine the application files and to advise the applicants that a preliminary view had been formed from that examination that the applications simultaneously satisfied the initial requirement for a ballot. The applicants could then be invited to indicate whether they wished to be further heard on the question of whether a ballot must be conducted and if so, why they wished to be heard. A decision could then be made by the warden as to how an applicant who sought to be heard should be given that opportunity. It may, for example, be sufficient for the warden to invite written submissions or it may be necessary for a hearing to be convened; that will depend on what the applicant indicated that it wished to raise in light of the preliminary view expressed by the warden. In other instances, the lodging of an objection may serve to define the procedure by which the question of whether there must be a ballot is to be resolved.

Should the time for making the application be extended?

32 Order 56 r 11 of the Rules of the Supreme Court 1971 provides that an order nisi for a writ of certiorari to remove, among other things, an order of an inferior tribunal or a magistrate for the purpose of it being quashed shall not be granted unless the application for the order is made within six months after the date of the order or where the delay is accounted for to the satisfaction of the court to which the application is made. A warden is necessarily a magistrate: s 13(1) of the Act.

33 In Re Smith; Ex parte Rundle (1991) 5 WAR 295 Malcolm CJ at 319 observed that O 56 r 11 was justified by:

... the need to act promptly in relation to proceedings to quash the decision of an inferior court or tribunal. Great inconvenience could be caused by permitting the decision to stand and allowing people to act on the assumption that the decision was valid.

34 I consider that it is appropriate to extend the time for making the application for the show cause order. In the peculiar circumstances of this matter, no person has acted on the assumption that the warden's decision was valid; to the contrary, the applicants and the respondent have apparently acted until early November 2010 on the basis that the decision was not fully effective in that it was open to be reconsidered. The applicants then promptly applied for relief once Warden Wilson indicated that he considered himself bound by Warden Richardson's earlier decision. It is also relevant that the respondent does not wish to be heard at any stage in these proceedings.

Should the show cause order be made absolute?

35 The court has been advised by the respondent that it does not intend to appear to oppose the making of an order absolute if a show cause order is issued. Similarly, the warden has indicated that she does not intend to appear.

36 The court may direct that a show cause order be heard by the Court of Appeal or by a single judge. This matter does not involve any point of principle of sufficient importance to justify a show cause order being heard by the Court of Appeal. Consequently, in the ordinary course I would have ordered that a show cause order issue and that it be heard by a single judge.

37 Order 56 r 1(6) provides that 'where it appears necessary for the advancement of justice' a court may in its discretion grant an order absolute in the first instance for a writ of certiorari. In my view, it is appropriate that I exercise the discretion conferred by that rule to make the order absolute as:

(a) the show cause order would otherwise be heard by a single judge;

(b) the parties who would be affected by the show cause order being made absolute do not intend to appear to oppose the decision being removed to be quashed;

(c) there is nobody who would appear as a contradictor;

(d) I have no doubt that the warden's decision should be quashed.

38 The expression 'the advancement of justice' appearing in O 56 r 1(6) is, in my view, sufficiently wide to encompass considerations of expedition (the avoidance of further delay in completing the procedures to enable the warden to make a report and recommendation to the minister in respect of the Applicants' Application and the Respondent's Application), cost and the public interest in the efficient allocation of limited judicial resources.

39 The effect of the failure by the warden to give the applicants an opportunity to be heard is that the decision was in made in excess of her jurisdiction. There is no occasion to consider whether a court in its supervisory jurisdiction may excuse a trivial breach of the requirements of natural justice as the applicants were not given any opportunity to be heard: see M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (4th ed, 2009) at [7.135].

40 However, Aronson, Dyer and Groves suggest that in exceptional circumstances a court might decline to grant relief where observance of the requirements could not possibly have altered the decision that was made [7.320]. Mr Lawton in his affidavit provided evidence about the circumstances in which the Applicants' Application and the Respondent's Application were recorded as having been lodged at the same time. Without in any way judging the merits of the issue, I am satisfied from that evidence that this is not case in which it could be said that the decision made by Warden Richardson could not possibly have been affected by hearing from the applicants.