The Warden's ruling on this issue has not been overruled in any other Court."

Having completed his draft early in May 1998 Mr Hicks gave it to Mr Burton. In his affidavit he said, "I cannot recall handing the draft back to Mr Miasi to check before submitting it to Mr Burton." In his affidavit Mr Burton has sworn that from the time when the draft minute was completed by Mr Hicks and then passed to him he knew that Mr Miasi "did not have any involvement in the preparation or content of the final minute to the Minister ... as I was responsible for the preparation and content of that minute." Mr Miasi's initials appear with those of other officers at the foot of the document, as Mr Burton explains, "because of his contribution to the draft minute".

21 Mr Burton has concluded his affidavit by saying,

"The final minute and attached documents were submitted to and signed by the Director General. They were then considered by the Minister over a 6 week period from 30 June 1998 to 10 August 1998. During this period I met with the Minister on two occasions, 16 and 17 July 1998, for extended periods of time whilst he considered all the documents forwarded to him including all submissions received from the competing applicants. Neither Mr Miasi nor Mr Hicks were present during either of these meetings. Senior Assistant Crown Solicitor, Robin Griffiths, attended the first of these meetings and met separately with the Minister on 7 August 1998."

22 Neither Mr Miasi nor Mr Phillips has provided an affidavit. One might well infer from the evidence which is before the Court that Mr Miasi had a direct pecuniary interest in the outcome of the application of Hot Holdings.

23 Counsel for the applicants readily acknowledged that it would be outrageous to suggest that the Minister decided as he did in order to benefit Mr Miasi or that the Minister personally was biased. Instead counsel contended that the decision was biased in that it was influenced by a recommendation originating from Mr Miasi who, without the knowledge of the Minister, had a pecuniary interest in the outcome. As I understand it, his main submission was to the following effect. In making a decision such as that which now is in question the Minister relies upon the advice which he receives. In this instance, one of his advisers had an interest in the matter which was the subject of the advice. The advice given was that the Minister should decide the matter in a way which, as it happened, was likely to benefit the adviser. Those circumstances, counsel submits, give rise to a reasonable apprehension that the decision was biased. The submission was developed in two stages.

24 First, relying upon R v Hendon Rural District Council; Ex parte Chorley [1933] 2 KB 696 counsel argued that the decision of the Minister was tainted by the pecuniary interest of Mr Miasi, even though the latter might not have taken an active part in the decision, and that the taint is not removed by lack of knowledge on the part of the Minister of that pecuniary interest. However, the evidence which now is available shows that Mr Miasi did not play any part in forming the decision of Messrs Burton and Phillips that the draft minute should support the warden's recommendation. To that extent this case is quite different from the Hendon District Council case, where the councillor actually voted on a decision as to a matter in which he had a pecuniary interest

25 Secondly, counsel argued that Mr Miasi put forward a line of thinking which was adopted by the Director General in support of the warden's recommendation. In his draft of the minute Mr Miasi wrote that the process which the Minister was required by the Act to follow involved consideration of the application of Hot Holdings "which has priority". In the final minute, when recommending the grant to Hot Holdings, the Director General placed "the outcome of the ballot conducted by the Warden" first among the matters to which he had regard when making the recommendation. Counsel argued that the Minister approached his decision-making task by giving primary consideration to the "priority" attaching to the application of Hot Holdings by reason of "the outcome of the ballot" and in that way Mr Miasi played a significant role in the success of the application.

26 In my opinion, the line of thinking identified by counsel was marked out by the warden six years ago when he proposed that five of the applications be granted, subject to the holding of a ballot to determine priority. As his report of 8 January 1998 shows, he recommended then that three applications have priority according to the order in which they were drawn from the ballot. Once that is appreciated, it is clear that the only contribution by Mr Miasi to the preparation of the final minute was to express in writing the decision of Messrs Burton and Phillips to adopt the recommendation - that is, that priority be given to the application of Hot Holdings by reason of the result of the ballot.

27 I conclude that, from the perspective of a fair minded and informed member of the public (see Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 53 per Mason CJ and McHugh J and at 67 - 68 per Deane J) the relevant circumstances are not such as to give rise to a reasonable apprehension or suspicion of a lack of impartiality on the part of the Minister or, indeed, on the part of any of those officers of the Department who decided what advice should be given to him.

28 It seems quite clear that, when adopting the recommendation of the Director General, the Minister did not take the pecuniary interest of Mr Miasi into account. As mentioned already, there is no suggestion that he was aware of that interest or that there was any reason for belief, or even suspicion, on his part that any of officers involved in preparing the minute was not entirely independent and disinterested. In those circumstances, there is no basis upon which one could argue reasonably that the Minister was bound to take the pecuniary interest of Mr Miasi into account.

29 In my opinion, there is no basis for an arguable case in relation to this ground.

Section 105A priority

30 The relevant provisions of s 105A read as follows:

" (1) .... where more than one application is received for a mining tenement (other than a miscellaneous licence) in respect of the same land or any part thereof, the applicant who first complies with the initial requirement in relation to his application has, subject to this Act, the right in priority over every other applicant to have granted to him in respect of that land or part the mining of tenement to which his application relates.

(2) In subsection (3) "applicant" means an applicant for a prospecting licence, exploration licence, mining lease or general purpose lease.

(3) 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 in open court on a date to be determined by the warden and notified to the applicants.

(4) In this section a reference to compliance with the initial requirement in relation to an application is a reference -

(a) in this case of an application for an exploration licence, to lodging that application at the office of the mining registrar;"

31 In Hot Holdings Pty Ltd v Creasy (supra) at 169-170 Brennan CJ, Gaudron and Gummow JJ expressed a preference for the view that the priority right in s 105A is, as a matter of construction, no more than a right to grant if there are competing applications and "all things are equal". Their Honours did not decide upon the nature of the "right in priority" but commented that the Minister "is not bound to grant the application of the first in time, or the winner of the ballot".

32 On behalf of the present applicants it is submitted that a reading of the letter of 10 August 1998 in which the Minister advised them of his decision leads to the inference that the Minister did not weigh up or consider the merits between the competing applicants but read the minute from the Director General and simply approved the recommendation, "rubber stamping" the outcome of the ballot without having regard to the question of whether "all things are equal".

33 The submission of the applicants is quite contrary to the statement of the Minister, in the second paragraph of his letter, that his determination to grant the application of Hot Holdings had been made "after consideration of the Warden's notes of evidence, his recommendations and all of the submissions and comments lodged". Further, the papers before the Court show that the Minister gave ample opportunity for the provision of submissions, that the issue as to whether all things in respect of the competing applicants were equal was canvassed at length in the submissions and that the minute of the Director General referred to those issues. In those circumstances, there is no basis for concluding that the Minister failed to take all relevant matters into consideration before deciding to grant the application of Hot Holdings.

34 In my opinion, there is no basis for an arguable case in relation to this ground.

35 My consideration of the matter has left me far short of finding that the decision of the Minister is void. I do not propose to grant the declaration sought. However, I am satisfied that there is an arguable case as to whether the Minister has made an error of law in deciding to grant the application of Hot Holdings notwithstanding its non-compliance with s 118. I conclude that an order nisi should be granted for each of the three writs of prohibition, mandamus and certiorari and that the claim for declaratory relief made in the amended summons should be referred to the Full Court for determination on return of the order or orders nisi.