Cazaly Iron Pty Ltd v The Hon John Bowler Mla, Minister for Resources & Ors [2006] WASCA 282

Cazaly Iron Pty Ltd v The Hon John Bowler Mla, Minister for Resources & Ors [2006] WASCA 282 - WASCA 2006 case summary — Zoe

[29]

"Corporations are of two kinds, distinguished in English law as corporations aggregate and corporations sole. 'Persons', says Coke, 'are of two sorts, persons natural created of God, and persons incorporate or politique created by the policy of man (and therefore they are called bodies politique), and those be of two sorts, viz, either sole, or aggregate of many.' A corporation aggregate is an incorporated group of co-existing persons, and a corporation sole is an incorporated series of successive persons. The former is that which has several members at a time, while the latter is that which has only one member at a time. Corporations aggregate are by far the more numerous and important. Examples are a registered company, consisting of all the shareholders, and a municipal corporation, consisting of the inhabitants of the borough. Corporations sole are found only when the successive holders of some public office are incorporated so as to constitute a single, permanent, and legal person. The Sovereign, for example, is said to be a corporation of this kind at common law, while the Postmaster General, the Solicitor to the Treasury, the Secretary of State for War, the Minister of Town and Country Planning, and the Minister of Education have been endowed by statute with the same nature.

... In the case of corporations sole, the purely legal nature of their personality is equally apparent. The chief difficulty in apprehending the true nature of a corporation of this description is that it bears the same name as the natural person who is its sole member for the time being, and who represents it and acts for it. Each of them is the Sovereign, or the Solicitor to the Treasury, or the Secretary of State for War. Nevertheless under each of these names two persons live. One is a human being, administering for the time being the duties and affairs of the office. He alone is visible to the eyes of laymen. The other is a mythical being whom only lawyers know of, and whom only the eye of the law can perceive. He is the true occupant of the office; he never dies or retires; the other, the person of flesh and blood, is merely his agent and representative, through whom he performs his functions. The living official comes and goes, but this offspring of the law remains the same for ever."

[35]

" ...

Each of the three reasons I will elaborate upon was sufficient on its own for me to be satisfied that the public interest was best served by terminating the Cazaly Resources [that is, the applicant's] application.

The State's Iron Ore Policy

Amongst the materials provided to me by the Department of Industry and Resources (DoIR) was the following advice:

' ... Parliament intended that Iron is a mineral for which special treatment be accorded under the Act...Parliament wanted the Minister to be in a position to exercise a much broader discretion in relation to iron tenements...this would have the effect of encouraging exploration for iron ore. ...and the life of these mining operations can last for decades, and in fact may need to last for decades to make the capital investment economically feasible...there is logical support for a special provision that allows an exploration licence for iron to be held on less onerous terms than licences for other minerals...'

The policy recognises the need for long term tenure to underpin long-term contracts. Iron ore mining in the volumes developed in the Pilbara can only be carried out with extensive infrastructure such as rail and ports. In order to invest in such extensive capital infrastructure, companies need the security of long-term contracts supported by secure tenement holdings.

Implicit in this long-standing policy is the certainty that some tenements containing iron ore deposits will not be mined for a lengthy period of time from the time of discovery.

This policy has been maintained by successive governments for many decades and it is my view that it has been a significant reason for the Pilbara region being the world's most prolific exporter of iron ore.

Any company mining iron ore in Western Australia needs to have access to long-term reserves in order to secure their future viability. For example, a company that has access to known reserves can more quickly respond to increases in demand.

Whilst this policy is under review, I am of the view that to arbitrarily deviate from its objectives and present method of implementation would be detrimental to the state's sovereign risk profile and therefore contrary to the public interest.

On reviewing the material I concluded that the objectives of the State's iron ore policy and therefore the public interest were best achieved by terminating the Cazaly Resources application.

Promoting Investment in Western Australia

I consider that the public interest is best served by policies and decisions that promote investment.

Investment in the resources industry is promoted when explorers can be confident that their ownership of resources they have discovered is not jeopardised, with consequences disproportionate to minor oversights or actions. This is particularly true where a tenement holder has clearly signalled their intentions to government by, for example, paying rent in advance.

I concluded that goals of promoting investment in Western Australia and therefore the public interest were best served by terminating the Cazaly Resources application.

Fairness

The effective administration of Ministerial discretion under the Western Australia Mining Act requires that the outcomes be consistent.

In considering this matter I was particularly focused on ensuring the answer I came to would be the same were the circumstances of the parties to be reversed. I have no doubt that this would be the case.

In other words, if the roles of Rhodes Ridges [sic] JV and Cazaly Resources were to be reversed, I would have found in favour of Cazaly Resources.

Accordingly I am satisfied that the public interest was best served by terminating the Cazaly Resources application."

[90]

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109; Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396 at 419; R v MacKellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461 at 476; Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 498-499; FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 360, 376-377; Annamunthodo v Oilfields Workers' Trade Union [1961] AC 945. ...

The reference to 'legitimate expectation' makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi (No 2) (at 404) Barwick CJ expressed the view that the expression 'legitimate expectation' adds little, if anything, to the concept of a right. However, later decisions demonstrate that the concept of 'legitimate expectation' extends to expectations which go beyond enforceable legal rights provided that they are reasonably based: Heatley (at 508-509); FAI (at 348, 351-352, 369, 412); Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] UKPC 2; [1983] 2 AC 629 at 636. The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision ... Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in FAI ... or from the existence of a regular practice which the person affected can reasonably expect to continue: Council of Civil Service Unions v Minister for Civil Service [1985] 1 AC 374 at 401. The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case."

[92]

"The notion of a 'legitimate expectation' which gives rise to a prima facie entitlement to procedural fairness or natural justice in the exercise of statutory power or authority is well established in the law of this country (see, eg, FAI Insurances Ltd v Winneke ((1982) [1982] HCA 26; 151 CLR 342, at 348, 351, 361 - 362, 369, 376, 390 - 391, but cf at 412). The notion is not, however, without its difficulty. For one thing, the word 'legitimate' is prone to carry with it a suggestion of entitlement to the substance of the expectation whereas the true entitlement is to the observance of procedural fairness before the substance of the expectation is denied (see, eg, Salemi v MacKellar [No 2] ((1977) [1977] HCA 26; 137 CLR 396, at 452); Kioa v West ((1985) [1985] HCA 81; 159 CLR 550, at 563)). In that regard, there is much to be said for preferring the phrase 'reasonable expectation' which has often been used in judgments in this Court. For another thing, the vagueness of the phrase 'legitimate expectation', which enables it to be used as a convenient label for a broad category of circumstances which will give rise to a prima facie obligation to accord procedural fairness, may convey an impression of comprehensiveness with the result that the absence of an identified legitimate expectation is wrongly seen as a legal mandate for disregarding procedural fairness in any case where no legal right in the strict sense is involved. Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to 'the particular statutory framework' (see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (Cth) [1963] HCA 41; (1963) 113 CLR 475, at 504), it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just."

[116]

" ... what Brennan J said about 'information that is credible, relevant and significant' takes its meaning from the point his Honour had made [at 628] only a few sentences earlier: that '[a]dministrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made'. Moreover, what is meant by 'credible, relevant and significant' must be understood having regard also to the emphasis that his Honour had given earlier in his reasons [at 622] to the fundamental point that principles of natural justice, or procedural fairness, 'are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise'. Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached.

It follows that what is 'credible, relevant and significant' information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. 'Credible, relevant and significant' must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is 'credible, relevant and significant' are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached."

[172]

"For my part I think it is unfortunate that over the years the colourful words 'fishing expedition' have been used in the present context. In one sense, every application for discovery will involve some element of 'fishing'. A party seeking discovery will often, perhaps usually, not know what material is in the possession or power of the other party which may advance or tend to advance the case of the person seeking discovery or denigrate from the case of his or her opponent. ...

...

... The present is not a case of mere assertion despite a submission to the contrary on the part of the respondents. It is a case where the court is being asked to exercise its supervisory jurisdiction of administrative decision-making by reference to the material which was before the decision-maker and in circumstances where the allegation is made that the totality of this material (in the possession of only one party) supports the view of unreasonableness or irrationality. It seems to me that that is a quite different case from that involved in WA Pines. To the extent that it is necessary that something more than an allegation be required even where Wednesbury unreasonableness is alleged, I think that the present case rests in more than assertion. The considerable material filed, which includes the Authority's report, leaves room for an unreasonableness argument. Be that as it may, where the manner in which the decision-maker has acted is at issue and the issue is required to be determined by reference to materials before the decision-maker, supervisory review can not be exercised without regard to the relevant material. It may support the applicant. It may support the respondent. But on the face of the pleadings and the report of the Authority, I think that there is sufficient material before me to show that what is involved is not as it were an attempt to determine whether there is a case to be made out under some head of judicial review, but rather there is the need here to have evidence to show whether the case that has been sought to be made out in fact is made out.

Accordingly, I am of the view that in the relevant sense discovery is necessary and that the case is not one falling within the exception of 'fishing'. ..."

Parties

Applicant/Plaintiff:

# Cazaly Iron Pty Ltd

Respondent/Defendant:

The Hon John Bowler Mla, Minister for Resources & Ors \[2006\] WASCA 282

Legislation Cited (8)

Mining Act 1904(WA)

Court (Court of Appeal) Rules 2005

Information Act 1992

Decisions (Judicial Review) Act 1977

Chancery Procedure Act 1852

Common Law Procedure Act 1854

Iron Ore (Rhodes Ridge) Agreement Authorisation Act 1972(WA)

Supreme Court (Court of Appeal) Rules 2005(WA)

Cases Cited (64)

Ali v Minister for Immigration, Local Government and Ethnic Afairs [1992] FCA 453; (1992) 38 FCR 144

British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709

Bushell v Secretary of State for the Environment [1980] UKHL 1; [1981] AC 75

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135

Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322

Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966

Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341

Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47; (1985) 65 ALR 549

Re Matthews; Ex parte MacKenzie [2000] WASC 147

Thomson v Earlwood-Bardwell Park RSL Club Ltd [1999] NSWSC 243

Treasurer of the Commonwealth of Australia v CanWest Global Communications Corp [1997] FCA 578

Varney v Parole Board of Western Australia [2000] WASCA 393; (2000) 23 WAR 187

Videto v Minister for Immigration & Ethnic Afairs [1985] FCA 326; (1985) 69 ALR 342

(1992) 38 FCR 144

(2000) 199 CLR 135

(2002) 76 ALJR 966

(1959) 103 CLR 341

(1987) 72 ALR 247

(1985) 69 ALR 342

(1951) 83 CLR 521

(1985) 159 CLR 22

(1994) 14 WAR 120

(1964) 112 CLR 125

(2003) 214 CLR 1

(2000) 205 CLR 337

(2001) 205 CLR 507

(1985) 159 CLR 550

(1977) 137 CLR 396

(1977) 137 CLR 487

(1982) 151 CLR 342

(1990) 169 CLR 648

(1963) 113 CLR 475

(1995) 183 CLR 273

(1990) 170 CLR 1

(2001) 75 ALJR 982

(1969) 122 CLR 546

(1986) 162 CLR 24

(1999) 85 FCR 286

(1995) 12 WAR 50

(2005) 80 ALJR 228

(2002) 115 FCR 561

(1980) 41 FLR 175

(1994) 52 FCR 542

(1990) 51 IR 113

(1986) 43 SASR 241

(1989) 20 FCR 387

(1980) 25 SASR 356

(2004) 62 NSWLR 707

(1969) 123 CLR 514

(1975) 49 ALJR 130

(1994) 51 FCR 38

(1996) 68 FCR 265

(2006) 80 ALJR 1549

(1985) 65 ALR 549

(2000) 23 WAR 187

(1993) 9 WAR 215

(2002) 210 CLR 438

(1976) 136 CLR 106

(1977) 137 CLR 461

(1987) 9 NSWLR 268

(1997) 18 WAR 408

(1999) 20 WAR 525

(1986) 10 FCR 78

At a glance

Court

Decision date

Before

Source

Judgment (213 paragraphs)

The meeting between the Honourable Mr Carpenter and Mr Leigh Clifford

The issues in dispute in the interlocutory applications

Whether the proposed amendment to par 13 of the notice of originating motion should be allowed: the applicable test and approach

Whether the proposed amendment to par 13 of the notice of originating motion should be allowed: the relevant principles of procedural fairness

Whether the proposed amendment to par 13 of the notice of originating motion should be allowed: the merits of the application

Whether documents relating to the "Statement of Principles" referred to in par 21 of the First Rio Submission should be discovered, even if not before the first respondent or otherwise considered when he made the decision

Whether documents relating to the meeting between the Honourable Mr Carpenter and Mr Clifford, to the extent they relate to the subject matter of the first respondent's decision, should be discovered, even if they were not before the first respondent or otherwise considered when he made the decision

The adequacy of the affidavit of discovery sworn on 19 September 2006

Confidentiality in relation to the documents required to be discovered

Parties

Legislation Cited (8)

Cases Cited (64)