Aurukun Bauxite Development Pty Ltd & Anor v State of Queensland [2016] QSC 263

ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - GENERALLY - where the applicants sought judicial review of the respondent State's decision to select another corporation to develop the "Aurukun project", as defined the Mineral Resources Act 1989 (Qld), and its decision to enter an "Aurukun agreement", as defined, with a subsidiary of the corporation - where selection by the State was a condition to entering an Aurukun agreement, which was in turn a condition for eligibility to apply for a development licence that could be granted by the Minister - where the respondent applied to dismiss the application - whether the challenged decisions were made "under an enactment" and decisions to which the Judicial Review Act 1991 (Qld) applied - whether making the challenged decisions constituted "conduct engaged in for the purpose of making a decision"

ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - TIME FOR APPLICATION - where the respondent terminated the competitive bid process in which the applicants where shortlisted candidates, continued to negotiate with the applicants, but then "reinstated" the competitive bid process at the same time as selecting another corporation - where the applicants filed the application 22 months after the selection decision and 17 months after the decision to contract - where the applicants believed a privative clause prevented review of the decisions, but did not file the application until three months after the clause was repealed - whether there was good reason for the delay - whether there would be prejudice to the respondent in circumstances where it had entered a contract with another corporation - whether the applicant's substantive case as to denial of procedural fairness was strong - whether the application should be dismissed on the ground of delay

Constitution of Queensland Act 2001 (Qld), s 51(1)

Judicial Review Act 1991 (Qld), s 4, s 7, s 8, s 20, s 21, s 48

Mineral Resources Act 1989 (Qld), s 231A, s 231E, s 231K, sch 2

Australian Broadcasting Commission v Bond (1990) 170 CLR 321; [1990] HCA 33, cited

General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 473; (1993) 45 FCR 164, considered

Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, applied

Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1, cited

Margarula v Minister for Environment (1999) 92 FCR 35; [1999] FCA 730, cited

[1] Jackson J: The respondent applies under s 48 of the Judicial Review Act 1991 (Qld) ("JRA") for an order dismissing the originating application for a statutory order of review.[1]

[2] The applicants seek judicial review under ss 20 or 21 of the JRA of what are described in the originating application as:

(a) a decision made by the respondent to select Glencore International AG ("Glencore") as the person to develop the "Aurukun project" as that term is defined in sch 2 of the Mineral Resources Act 1989 (Qld) ("MRA");

(b) a decision made by the respondent as to the identity of the counterparty to the proposed "Aurukun agreement" as that term is defined in the MRA: and

(c) a decision made by the respondent to enter into the Aurukun agreement with Glencore to develop the Aurukun project.

[3] On 27 November 2012, the respondent called for expressions of interest for development of an Aurukun project, being a project to develop the bauxite resources in the land described as restricted area 315 ("RA315").

[4] On 23 April 2013, the second applicant was one of the candidates shortlisted by the respondent for participation in further phases for a competitive bid process for an Aurukun project.

[5] On 11 March 2014, the respondent terminated the competitive bid process.

[6] On 23 May 2014, the first applicant was incorporated, apparently with the intention of taking over the second applicant's role as a shortlisted competitor.

[7] Thereafter, the respondent continued to negotiate with the first applicant about its proposal.

[8] On 19 August 2014, the Resources Cabinet Committee decided to endorse Glencore as the preferred proponent of the Aurukun project.

[9] By 28 August 2014, the applicants were aware of the 19 August decision. The respondent announced the decision publicly and wrote to the applicant advising that it had decided to reinstate the competitive bid process and to select Glencore as the preferred proponent.

[10] On 24 September 2014, the applicants requested reasons for that decision.

[11] On 24 October 2014, the respondent refused to provide reasons.

[12] On 5 January 2015, the respondent entered into an agreement with a subsidiary of Glencore ("the Glencore subsidiary") being an "Aurukun agreement" within the meaning of sch 2 to the MRA.

[13] On 14 January 2015, the Glencore subsidiary applied for a mineral development licence.

[14] On 10 June 2016, the National Native Title Tribunal decided that the proposed grant of a mineral development licence was a future act that attracted the expedited procedure under the Native Title Act 1993 (Cth), s 237.

[15] In June 2015, Ngan Aak-Kunch Aboriginal Corporation ("Aboriginal Corporation") started a proceeding in the High Court claiming that s 231K of the MRA, a privative clause, was invalid because it was inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth).

[16] On 24 March 2016, the Mineral Resources (Aurukun Bauxite Resource) Amendment Act 2016 (Qld) came into force. That Act repealed s 231K of the MRA.

[17] On 17 June 2016, the first applicant filed the originating application in this proceeding.

[18] The MRA empowers the Minister to grant a mineral development licence under ch 5. It also authorises the Minister to grant a mining lease under ch 6. In either case, an application must be made by an "eligible person".[2] In the case of a mining lease, the application may be made by the holder of a mineral development licence for all the land proposed to be the subject of the mining lease.[3]

[19] The statutory scheme for the grant of a mineral development licence, in the first place, and a mining lease based on a mineral development licence, in the second place, is broken into two parts. The first part of both ch 5 and ch 6 relates to land other than RA315. The second part of both ch 5 and ch 6 relates to RA315.

[20] Chapter 5 pt 2 of the MRA provides for the grant of a mineral development licence over RA315. That result is brought about by ss 231A and related provisions. Section 231A provides, in effect, that ch 5 pt 2 only applies for the grant of, and in relation to, a mineral development licence for an Aurukun project. An "Aurukun project" is defined in sch 2 to mean "a project for the extraction, transportation and processing of bauxite" on the land that is RA315 or a part of that land. The definition also provides that an Aurukun project includes "the construction and operation of works, including, for example, mining equipment, electricity generation plants and related distribution infrastructure, pipelines, telecommunications infrastructure, water storage and distribution infrastructure, buildings, conveyors, roads or railways on land near Aurukun and Weipa."

[21] The general structure of ch 5 pt 2 is to apply the provisions of ch 5 pt 1 that relate to the grant of a mineral development licence over land other than RA315, but to disapply the particular sections in pt 1 identified in s 231A(3). The specific sections that follow s 231A in ch 5 pt 2, generally speaking, take the place of the disapplied sections from pt 1 and are tailored to the grant of a mineral development licence for an Aurukun project.

[22] A critical step in this structure is that only an "eligible person" may apply for a mineral development licence for an Aurukun project. The definition of "eligible person" in sch 2 is as follows:

(b) for chapter 5, part 2 and chapter 6, part 2 - a person who is a party to an Aurukun agreement with the State."

[23] The term "Aurukun agreement" is defined in sch 2 as follows:

"Aurukun agreement means an agreement between the State and a person selected by the State to develop an Aurukun project."

[24] The decisions of the respondent State challenged by the originating application are its decisions to select a person to develop an Aurukun project and the associated or consequential decision to enter into the Aurukun agreement previously identified.

[25] Section 20(1) of the JRA provides that "[a] person who is aggrieved by a decision to which [the JRA] applies may apply to the court for a statutory order of review in relation to the decision."

[26] A decision to which the JRA applies, relevantly, must be a decision made under an enactment. Section 4 of the JRA provides, in part:

(a) a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)..."

[27] By reference to Griffith University v Tang,[4] the parties adopt the position in common that for a decision to be made under an enactment it must satisfy the criteria that:

"... first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations..."[5]

[28] The applicants submit that there are three decisions in the present case as set out previously in paragraph [2], but I can only see two. One was the decision to select Glencore as a person to develop an Aurukun project ("selection decision"). The other was the decision to enter into the Aurukun agreement with the Glencore subsidiary ("decision to contract"), by which the Glencore subsidiary also became the person selected to develop an Aurukun project. I cannot discern that there was a separate decision to identify the Glencore subsidiary as the contractual counterparty.

[29] The first question is whether the selection decision was a decision impliedly authorised by the MRA. The only textual support for that conclusion is the reference in the definition of "Aurukun agreement" to a "person selected by the State to develop an Aurukun project".

[30] The respondent submits that the selection decision was not made under the MRA as a result of or because of that reference. The respondent submits that the selection was one made by the respondent as the executive government of the State of Queensland exercising the powers and the legal capacity of an individual.[6] I agree.

[31] It follows that the selection decision was not a decision impliedly authorised by the MRA.

[32] I also reject the applicants' submission that the selection decision gave Glencore the exclusive right to enter into an Aurukun agreement. The expressions of interest and competitive bid process expressly excluded any right of that kind. There is no provision of the MRA that conferred any right on a person selected who had not entered into an Aurukun agreement. Any right created by the selection decision would have to have been created under a process contract. But the applicants could not point to any provision of the process that created such a contractual right. In any event such a contractual right would be a private law right and not one that flowed from the decision to select Glencore as a decision impliedly authorised by the MRA.

[33] It follows, in my view, that the respondent's decision to select Glencore as the preferred proponent was not a decision under an enactment and that decision is not a decision to which the JRA applies.

[34] The applicants submit that the decision to enter into the Aurukun agreement was one that affected legal rights or obligations. As the applicants' case was presented, the decision to enter into the Aurukun agreement is not to be dissociated or separated from the fact of making the agreement and the creation of the rights and obligations under it. On that view, the decision to enter into the Aurukun agreement clearly affected legal rights and obligations.

[35] However, the respondent submits that the decision to contract does not affect relevant rights or obligations for the purposes of assessing whether there is a decision under an enactment, because the rights and obligations under the contract are not the applicant's rights. In my view, there is no requirement that the relevant rights and obligations flowing from a decision made under an enactment must be the rights or obligations of the applicant. Judicial review under pt 3 of the JRA is a public law remedy. The standing of an applicant is dealt with by the requirement in s 20 that an applicant be "a person aggrieved".

"(1) In this Act, a reference to a person aggrieved by a decision includes a reference -

(a) to a person whose interests are adversely affected by the decision; or..."

There is no additional qualification that the legal rights or obligations affected by a decision made under an enactment must be those of the applicant. On this point, I accept the applicants' submission.

[37] The applicants further submit that the decision to contract by entering into the Aurukun agreement with the Glencore subsidiary was a decision impliedly authorised by the MRA.

[38] Again, the respondent submits that the decision to enter into the Aurukun agreement with the Glencore subsidiary was merely an exercise of the powers and the legal capacity of an individual by the executive government of the State of Queensland.

[39] By definition, an Aurukun agreement must be to develop an Aurukun project. The extent of the agreement is identified also by the definition of an Aurukun project. These are qualifying matters for what is an Aurukun agreement for the purposes of identifying whether a person is a party to an Aurukun agreement and therefore an eligible person within the meaning of ch 5 pt 2 to make an application for a mineral development licence over RA315 or part of it.

[40] In General Newspapers Pty Ltd v Telstra Corporation,[7] the Full Court of the Federal Court said of a challenge to the process of selecting a successful tenderer to enter into a supply contract for printing telephone directories:

"In the present case, the decisions relied upon involved the entry of contracts and the conduct challenged was conduct leading to the making of the contracts. No statute made specific provision for such contracts, merely conferring upon Telecom all the powers of a natural person including the power to enter into a contract. That was a mere conferral of capacity to act. The contracts were not relevantly authorised or required by and were not made under an enactment. The validity of the contracts and of the acts done was governed entirely by the law of contract, not by the statutes. Thus, the [Administrative Decisions (Judicial Review) Act 1977 (Cth)] had no application to the conduct or to the alleged decision."[8]

[41] In the present case, the definition of an Aurukun agreement makes specific reference to selection of a person to develop an Aurukun project. But it did not authorise or otherwise provide for the selection. Selection had as its purpose that an Aurukun agreement might be entered into between the person selected and the respondent, but selection did not require or empower either party to attain that outcome. In other words, there was no provision in the statute either for selecting or for entering into the contract to develop an Aurukun project. Rather, those facts were made conditions of the definition of an Aurukun agreement for the purpose of identifying who is an eligible person to apply for a mineral development licence over RA315.

[42] Accordingly, in my view, the decision by the respondent to enter into the Aurukun agreement with the Glencore subsidiary was not one impliedly authorised by the MRA.

Conduct engaged in for the purpose of making a decision

[43] Faced with the prospect that neither the selection decision nor the decision to contract was a decision to which the JRA applies, the applicants made an alternative submission that both decisions were conduct engaged in for the purpose of making a decision to which the JRA applies and are reviewable as such conduct under s 21 of the JRA.

"(1) If a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies (whether by the person engaging in the conduct or by another person), a person who is aggrieved by the conduct may apply to the court for a statutory order of review in relation to the conduct."

"A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of anything preparatory to the making of the decision, including -

[46] For this purpose, the applicants rely on the prospective decision whether to grant a mineral development licence to the Glencore subsidiary under s 231E of the MRA as the relevant decision to which the JRA applies.

"(1) If the Minister is satisfied the applicant has complied with this Act in relation to the application, the Minister may grant and issue to the applicant a mineral development licence over all or part of the land for which the application is made.

(2) Alternatively, the Minister may reject the application..."

[48] There is no question that a decision of that kind is a decision of an administrative character made under an enactment that affects legal rights and obligations.

[49] The respondent submits that the conduct in making the selection decision or in making the decision to contract is not conduct for the purpose of making a decision whether to grant a mineral development licence, because those decisions were substantive decisions, as opposed to procedural matters of the kind that constitute conduct under s 8 of the JRA for the purposes of s 21 of the JRA. They relied on the well-known passage from Mason CJ's judgment in Australian Broadcasting Commission v Bond[9] as follows:

"The distinction between reviewable decisions and conduct engaged in for the purpose of making such a decision is somewhat elusive. However, once it is accepted that "decision" connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of "conduct" in the statutory scheme of things becomes reasonably clear. In its setting in s. 6 the word "conduct" points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character."[10]

[50] I do not need to consider that question in this case. There is an anterior point to consider. The selection decision and the decision to contract are decisions or conduct leading to the existence of an Aurukun agreement. As provided by the definition, an Aurukun agreement is made by the "State".

[51] In contrast, a decision under s 231E whether to grant or reject an application for a mineral development licence is a decision to be made by the "Minister" - a personal decision of that office holder. The Minister's conduct in respect of the decision whether to grant a mineral development licence begins through his or her delegates after an application for the licence is made under s 231B by lodging it with the chief executive under s 231C(d).

[52] Section 8 of the JRA extends what is conduct engaged in for the purpose of a decision "to the doing of anything preparatory to the making of the decision". But, in my view, that does not extend to conduct which does not form part of the process for making the decision by the decision maker. In my view, it does not extend to the anterior exercise by the respondent State of the State's contracting power to enter into an Aurukun agreement, or a decision by the respondent State to select a person to develop an Aurukun project. Those decisions by the State are not conduct engaged in for the purpose of the Minister making a decision on an application for a mineral development licence.

[53] The point was made in relation to the corresponding provisions of the Judicial Review (Administrative Decisions) Act 1977 (Cth), ss 3(5) and 6 as follows:

"The position in my view is that s 6 is limited to conduct engaged in by the person who makes the decision. But the acts of another person which have been authorised or adopted by the decision-maker are to be attributed to the decision-maker. If a responsible officer of a minister's department is acting in his capacity as such, his acts are authorised by the minister and can be treated as the acts of the minister..."[11]

[54] Alternatively, whilst minds might possibly differ on this point, in my view the fact that the respondent must enter into an Aurukun agreement with a person selected to develop an Aurukun project before an application for a mineral development licence over RA315 or any part of it can be made does not make those steps "preparatory" to the making of the decision on an ensuing mineral development licence application when that application has not yet been made.[12]

[55] Accordingly, in my view, the applicants have not shown that their application engages a reviewable decision or reviewable conduct under pt 3 of the JRA. It follows that the application must be dismissed.

[56] Against the possibility that there is a reviewable decision or conduct, I will briefly consider the question of whether the application should be dismissed on the alternative ground that it is made too late.

[57] Recapping, on or about 28 August 2014, the applicants received notification of the decision to reinstate the competitive bid process and the selection decision.

[58] On 5 January 2015, the respondent entered into the Aurukun agreement with the Glencore subsidiary.

[59] On 17 June 2016, the first applicant filed the originating application.

[60] That was 22 months after the selection decision and 17 months after the decision to contract.

[61] Section 26(1) and (2) of the JRA provide, in effect, that in the case of a decision recorded in writing the terms of which are set out in a document given to the applicant, the application must be made within 28 days or such further time that the court allows. That provision may apply to the selection decision, but it is not suggested that it applies to the decision to contract.

[62] Otherwise, s 26(3) provides, in effect, that an application for a statutory order of review must be made within a reasonable time after the decision is made or the court may refuse to consider the application.

[63] In my view, the application for a statutory order of review was not brought within the required time, on either basis.

[64] The applicants submit that the originating proceeding should not be dismissed under s 48 of the JRA on the basis that it would be inappropriate for the application to be continued due to the delay in the application being brought out of time.

[65] It was common ground that the relevant considerations in reaching that decision are the reasons for and any explanation for the delay, the prejudice to any person and the strength of the applicants' case for review.

[66] First, the applicants submit that s 231K of the MRA applied until it was repealed on 24 March 2016. That section provided:

_"(1) A decision under this Act, in relation to a mineral development licence - _

(b) can not be challenged, appealed against, reviewed, quashed, set aside or called in question in any other way, under the Judicial Review Act 1991 or otherwise (whether by the Supreme Court, another court, a tribunal, an authority or a person); and

(c) is not subject to any declaratory, injunctive or other order of the Supreme Court, another court, a tribunal, an authority or a person on any ground.

decision includes a decision affected by jurisdictional error."

[67] The respondent submits that neither the selection decision nor the decision to contract was a decision under the MRA "in relation to a mineral development licence", because neither was part of the process for a decision whether to grant a mineral development licence. Neither selecting Glencore nor entering into the Aurukun agreement with the Glencore subsidiary triggered any process under the MRA itself.

[68] As to a "decision under this Act" within the meaning of s 231K(1), from the discussion of the cognate question as to whether the selection decision or the decision to contract is a decision to which the JRA applies, it follows that in my view neither decision was made under the MRA. However, I proceed on the assumption that I might be wrong in that view.

[69] The words "in relation to" in s 231K(1) are words of wide connection which take their meaning from their context. Under the MRA, the only purpose of an Aurukun agreement is as a qualifying factor for an eligible person under ch 5 pt 2, and ch 6 pt 2. In my view, however, the selection decision was not a decision in relation to a mineral development licence. No mineral development licence had been applied for when that decision was made.

[70] For the same reason, in my view, a decision to enter into an Aurukun agreement is not a decision under the MRA in relation to a mineral development licence.

[71] If s 231K had prohibited an application to set aside the selection decision or decision to contract under either ss 20 or 21 of the JRA, still the applicants were not precluded form claiming relief under pt 5 of the JRA. Although s 231K purported to apply to a decision affected by jurisdictional error, a privative clause that attempts to do so is invalid as inconsistent with the constitutional entrenchment of this court's supervisory jurisdiction.[13]

[72] However, for the purposes of considering the applicants' delay as a matter of discretion, the question is not whether the applicants' rightly thought that s 231K operated as a privative clause ousting this court's jurisdiction under the JRA. It is whether on the assumption that they erroneously thought that they were barred from bringing a proceeding, they have a reasonable explanation. On the footing that they believed that s 231K was a bar, the first date on which the applicants could have brought the present application was from 24 March 2016.

[73] Nevertheless, the applicants' delay continued from then until 17 June 2016. That delay is unexplained. Taken alone, it is a week short of three months. In my view, that period was unreasonable, in the context of the prior delays.

[74] The judicial review of administrative decisions should be undertaken promptly. The requirement to bring a proceeding within the stipulated or a reasonable time is normally essential to that outcome.

[75] Second, the applicants relied on the claim made by the Aboriginal Corporation in the High Court started on 15 June 2015. The applicants submit that it was reasonable for them to delay starting the originating application while a question as to the validity of s 231K (and possibly other provisions) was on foot.

[76] This amounts to little more than saying that the applicants should be entitled to choose not to bring their challenge by judicial review if the outcome of the claim made by the Aboriginal Corporation might have achieved the same outcome from their point of view.

[77] I reject that reasoning. A party is not entitled to arrogate the decision when to start a proceeding to themselves, in violation of a statutory requirement to bring it within a particular time frame, because it might not be necessary to do so if some other case is won in the meantime. In taking that course, the applicants ignored the respondent's procedural right to have the proceeding brought against it within the time limited by the JRA and to be free from challenge to the decisions if no application is brought within a reasonable time.

[78] Things might be different if an applicant consults a decision maker and other affected persons on the basis that any judicial review of the challenged decision might await the determination of a challenge to the validity of the enactment under which it was made, and the parties agree to proceed in that way. But that is not what the applicants did. They reserved to themselves the decision as to when the proceeding should be brought, in violation of the statutory periods under s 26 (or possibly the corresponding common law approach to the impact of delay on an application for an order in the nature of certiorari under pt 5 of the JRA). They should not be excused lightly for doing so.

[79] In any event, this reason for delay does not explain the applicants' delay over the period from 28 August 2014 when the selection decision was made until 15 June 2015 when the Aboriginal Corporation's claim as to invalidity of s 231K and any other provisions was started in the High Court.

[80] The applicants submit that there would be no prejudice to the respondent by a review of the decisions. In my view, that submission should not be accepted. The respondent and the Glencore subsidiary as parties to the Aurukun agreement are already advanced into the processes for determination of their rights in the National Native Title Tribunal. It should not be assumed that those rights are of no significance.

[81] The respondent and the Glencore subsidiary were parties to the Aurukun agreement for 17 months before the originating application was started. Their rights and obligations inter se have been affected by the contract since that time. However, the respondent did not lead any evidence as to the terms of the contract, or the prejudice that might be suffered either by the respondent or the Glencore subsidiary if the decisions and the Aurukun agreement were set aside.

[82] The applicants also rely on the circumstance that on an unstated date the Senate referred an enquiry into the development of bauxite resources near Aurukun in Cape York to the Senate Economic References Committee for report by 31 March 2016. However, on 9 May 2016 both Houses of Parliament were dissolved and the referral has lapsed. The applicants submit that nevertheless the referral demonstrates "the public significance of all matters concerning bauxite mining in the Cape York area on aboriginal land". Whether or not there is any such public significance is not a relevant factor, in my view.

[83] In my view, a statutory order of review under ss 20 or 21 of the JRA is directed to the legality of the decision or conduct, not whether the policy of the decision or conduct was a good one. Where an applicant delays in bringing an application for judicial review within a stipulated or reasonable time as required under the JRA, the court should not rely on whether the decision or conduct is a matter of public interest as a matter of policy as a relevant factor in deciding whether or not an extended time period should be allowed to maintain a challenge into the legality and validity of the decision or conduct.

[84] I need not repeat what I have said about whether there is a decision under an enactment or conduct engaged in for the purpose of making a decision under an enactment. However, if the applicants had cleared those hurdles, the question would be whether they should be permitted to continue an application not brought within a reasonable time having regard to the strength of their case.

[85] Essentially, the claim of the applicants is that they were denied procedural fairness because the respondent decided to reinstate the competitive bid process and to select Glencore as the preferred proponent without giving the applicants some further hearing.

[86] It is not to be forgotten that by March 2014 the respondent had followed the substance of the procedure envisaged under the expressions of interest and competitive bid process before it terminated the process. After that, the respondent engaged with the applicants about the deficiencies it saw in the applicants' proposal.

[87] The applicants rely on statements made by a senior officer of the respondent in the weeks before the selection decision that the applicants would be given the opportunity to present an updated proposal to the department once he received instructions from the government on a new process and that he would "get back in touch" with the applicants again as soon as he was briefed on the process.

[88] And as it turned out, the respondent did not decide on a new process or decide to reopen the expressions of interest process in any significant way. It notified the parties that it "reinstated" the earlier competitive bid process. That was expressly provided for under cl 5.1 of the original expressions of interest document, as follows:

"Notwithstanding any provision of this EOI Invitation, the State may conduct the Competitive Bid Process in such manner as it thinks fit and the State reserves the right, in its absolute discretion and at any time, to:

• ... terminate or reinstate the Competitive Bid Process; ..."

[89] The applicants' deponents do not say that at the time the selection decision was made there was some outstanding aspect of their discussions with representatives of the respondent upon which the applicants had been requested to submit further information or sought the opportunity to do so.

[90] Given that on the same day the respondent announced that it was reinstating the competitive bid process it also announced that it had decided to select Glencore as the preferred proponent, there was only a formal "reinstatement". The respondent submits that the function of the reinstatement was to apply the aegis of the protective provisions of the expressions of interest process to the decision to select Glencore.

[91] Whether or not that be so, the question as to the strength of the applicants' case to set aside the selection decision remains. When pressed in oral argument as to the content of the opportunity for a further hearing that the respondent was required to give so as to accord procedural fairness, the applicants' counsel submitted that it was to be the opportunity to submit an updated proposal or further submissions.

[92] However, that submission harks back to the statement of the respondent's employee about the putative new process. That is not the path that the respondent took. It "reinstated" the old process.

[93] The applicants' counsel were not able to identify any particular subject or matter that the respondent was obliged to give the applicants the opportunity to submit before being able to proceed to make a decision to select the preferred proponent under the reinstated competitive bid process.

[94] I am unable to draw any positive conclusion as to the strength of the applicants' case for an order setting aside the selection decision or the decision to contract with the Glencore subsidiary.

[95] Accordingly, if it had been necessary to do so, I would have dismissed the originating application on the ground of delay.

[1] Although the originating application also sought relief under s 43 of the Judicial Review Act 1991 (Qld), that relief is no longer pursued.

[2] See Mineral Resources Act 1989 (Qld), sch 2 (definition of "eligible person").

[3] Mineral Resources Act 1989 (Qld), s 318AAB.

[4] [2005] HCA 7; (2005) 221 CLR 99.

[5] [2005] HCA 7; (2005) 221 CLR 99, 130 [89].

[6] Constitution of Queensland Act 2001 (Qld), s 51(1).

[7] [1993] FCA 473; (1993) 45 FCR 164.

[8] [1993] FCA 473; (1993) 45 FCR 164, 173.

[9] [1990] HCA 33; (1990) 170 CLR 321.

[10] [1990] HCA 33; (1990) 170 CLR 321, 341-342.

[11] Margarula v Minister for Environment [1999] FCA 730; (1999) 92 FCR 35, 46 [20].

[12] There is no evidence that the Glencore subsidiary was obliged to make such an application.

[13] Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531.