Section 118

16 Section 8 of the Act defined "mining tenement" to mean, inter alia, an exploration licence and a mining lease. As in force in October 1992, s 118, in Part V of the Act which is headed "General Provisions relating to Mining and Mining Tenements", provided:

"Where any land comprised in an application for a mining tenement is held subject to a pastoral lease within the meaning of the Land Act 1933 ... the applicant shall within 14 days of the lodging of the application, post a copy of the application together with a map on which are clearly delineated the boundaries of the land in respect of which the mining tenement is sought by registered post or certified mail to the holder of that lease at his usual or last known place of abode or business."

17 It was common ground that the land the subject of Hot Holdings' application was subject to two pastoral leases within the meaning of the Land Act 1933, namely, pastoral lease 3114/677, commonly known as "Yandal Station" and pastoral lease 3114/772, commonly known as "Barwidgee Station". On 15 October 1992 and at all other material times, Arimco and Oresearch were the registered lease holders of Yandal Station as tenants in common in equal shares. Their usual places of business were addresses in Perth and West Perth respectively. From 15 October 1992 until 18 August 1993, Leonard Charles Boladeras and Lynne Milroy Boladeras were the registered holders of Barwidgee Station as tenants in common in equal shares. The instrument of lease recorded their address as Yandal Station, Leonora.

18 On 15 October 1992 Mr Leith Beal, a director and shareholder of Hot Holdings, on its behalf caused a copy of Hot Holdings' application to be sent by certified mail to "LC and LM Boladeras, c/- Yandal Station via Leonora". This was not accompanied by a map which clearly delineated the boundary of the land in respect of which the mining tenement was sought. Hot Holdings did not within 14 days of lodging its application post a copy of the application together with the necessary map by registered post or certified mail to Arimco and Oresearch as holders of pastoral lease 3114/677 at their usual place of business. On or about 12 January 1993 (some three months later) Hot Holdings posted a copy of its application to Arimco and Oresearch at their respective business addresses in purported compliance with its statutory obligation under s 118 of the Act.

19 Part IV of the Act was headed "Mining Tenements". Division 2 (s 57 - s 70) of Part IV provided for the grant of exploration licences. Division 3 (s 71 - s 85) provided for the grant of mining leases. Section 57(1) in Division 2 provided:

"Subject to this Act the Minister may on the application of any person and after receiving a recommendation of the warden in accordance with s 59, grant to that person a licence to be known as an exploration licence on such terms and conditions as the Minister may determine."

20 Section 59 provided for the hearing of an application for an exploration licence by the warden. Section 59(3) provided that the warden should, as soon as practicable after the hearing of an application for an exploration licence, transmit to the Minister for his consideration the notes of evidence, any maps or other documents and his report with reasons for recommending the granting or refusal of the exploration licence. Subsection (4) provided that on receipt of the notes of evidence and any maps or other documents transmitted to him pursuant to subs (3), "the Minister may grant or refuse the exploration licence as he determines, and whether the warden recommends the granting of the licence or the refusal thereof".

21 Section 71 in Division 3 provided:

"Subject to this Act, the Minister may, on the application of any person, after receiving a recommendation of the warden in accordance with section 75, grant to the person a lease to be known as a mining lease on such terms and conditions as the Minister considers reasonable."

22 Section 75 of the Act, which was headed "Hearing of application for mining lease", provided in subs (3) for the warden as soon as practicable after the hearing of an application for a mining lease to transmit to the Minister for his consideration the notes of evidence, maps or other documents and his report with reasons for recommending the granting or refusal of the mining lease. Subsection (4) provided that on receipt of the notes of evidence and maps or other documents transmitted pursuant to subs (3), the Minister:

"may, subject to subsection (5), grant or refuse the mining lease as he thinks fit, and whether or not -

(a) the warden recommends the granting of the mining lease or the refusal thereof; and

(b) the applicant may or may not have in all respects complied with the provisions of this Act."

23 In the first Full Court decision Malcolm CJ, after reviewing the warden's discretion on applications for mining leases and exploration licences, said at 5 - 7 that s 75(5) cut down the discretion of the Minister in certain circumstances,

"Otherwise the discretion [to grant a mining lease] is not fettered by the recommendations made by the Warden or by any requirement that the Act be complied with by the applicant.

In my view, the Minister has a discretion to grant or refuse a mining lease which is wider than the discretion exercised in the case of an exploration lease. In the former case, he can make the grant even though the applicant has not complied with the requirements of the Act. In the latter case, compliance with the Act appears to be a pre-condition of the grant or refusal of the exploration licence."

24 This conclusion followed from the contrast in language between s 59(3) and s 75(4). At 18 Rowland J also observed, for like reason, that the Minister would seem to have had a wider discretion when considering an application for a mining lease to grant the lease even if the applicant had not complied with any provisions of the Act. At 28 Rowland J said:

"We did hear full argument on several matters and, although not binding, it might be helpful if I gave my opinion on some.

1. In my opinion, except in relation to an application for mining lease (or any other tenement (if any) which gives the Minister power to grant, irrespective of compliance by the applicant with the Act), compliance with s 118 must be a condition of the grant. There is no power to extend the time. Whether or not s 118 has been complied with is a question of fact, as is the 'usual or last known place of abode or business' of the holder of the pastoral lease. The Warden has made findings of fact as to each of these matters."

25 Nicholson J said at 9 that he agreed with what Rowland J said in par 1 which I have just quoted and continued:

"In the case of s 118, non-compliance is relevant to the act of grant, not to the validity of the application or the question of priority."

26 The Full Court decided the applications before it on the threshold question, referred to by the Chief Justice at 4, of whether certiorari was available to quash the relevant decision of the warden. The Chief Justice said that the report and recommendation of the warden, whether on an application for mining lease or for an exploration licence, did not affect the applicants' rights or subject them to any new hazard. In the passage I have quoted, Rowland J expressed the view that compliance with s 118 must be a condition of a grant of an exploration licence but said that his views on that were not binding.

27 Their Honours' observations about the effect of s 118 were not necessary to, nor did they form part of the reasoning for, the decision that the remedy of certiorari was not available. Accordingly, although what their Honours said must carry considerable weight, their observations were obiter dicta.

28 When the appeal against the refusal by the Full Court to grant certiorari as dealt with in the High Court ((1996) 185 CLR 149) the majority comprising Brennan CJ, Gaudron and Gummow JJ said at 165 that the Act created various parallel decision-making schemes for the different forms of mining tenement, each of which adhered to the same basic structure.

"Following application, the warden is to collect evidence, consider objections, make recommendations, give reasons, and transmit all of this to the Minister. Discretion is then vested in the Minister either to grant or to refuse applications."

29 Dealing with exploration licences and mining leases, their Honours summarised at 165 - 167 the provisions of s 58, s 59 and s 71, s 74 and s 75. Relevantly, s 57(1) and s 71 provided that, subject to the Act, the Minister might, on the application of any person and after receiving a recommendation of the warden in accordance, in the one case, with s 59 and, in the other, with s 75 grant to that person, in the one case, a licence to be known as an exploration licence on such terms and conditions as the Minister might determine and, in the other, a lease to be known as a mining lease on such terms and conditions as the Minister considered reasonable. Their Honours made no point about the contrast in language between s 59(4) and s 75(4). At 166 under the heading "Exploration licences" they said:

"Section 59(4) appears to indicate that the Minister's discretion to grant or refuse may be made on receipt of only the notes of evidence and any maps or documents. This leaves unmentioned the other documents which subs (3) requires the warden to transmit, namely, the report recommending the granting or refusal of the exploration licence and setting out the warden's reasons. Accordingly, it might be thought that the Minister's power could be exercised under s 59(4) after seeing the notes of evidence and maps, and not having before him the warden's recommendation. However, that construction runs contrary to s 57(1). This conditions the Minister's power so that the discretion may be exercised only 'after receiving a recommendation of the warden'. That is the primary grant of power. Section 59(4), although phrased as a grant of the same power, must be construed as a supplemental indication of the nature of the power. It merely indicates that the Minister is not bound to decide in accordance with the terms of the warden's recommendation.

The decision-making structure involved in the grant of a mining lease follows a similar form. Applications for a mining lease must be in prescribed form, accompanied by rent and application fee and lodged with the Mining Registrar (s 74(1)). There is not the same requirement as to information as exists for exploration licences, although the warden may request further information (s 74(2)).

Mining lease applications are also heard in open court (s 75(1)), and 'a person who desires to object' may lodge such objection and is entitled to be heard by the warden (s 75(2)). The warden is obliged to send 'to the Minister for his consideration' the notes of evidence, maps and other documents and his report recommending grant or refusal and setting out his reasons (s 75(3)).

The power to grant a mining lease is again vested in the Minister 'after receiving a recommendation of the warden in accordance with section 75' (s 71). Once again, this section picks up the requirement of the warden to transmit notes, maps and a report recommending the grant or refusal of the mining lease and setting out the warden's reasons. It also picks up s 75(4) which indicates that the Minister may grant or refuse notwithstanding the warden's recommendation or the applicant's compliance with the Act. The Minister's power comes from s 71, not s 75(4) which merely clarifies the circumstances in which it may be exercised."

30 The majority said that, in the case of the grant of an exploration licence, s 57(1) was the primary source of power and, in the case of a mining lease, the Minister's power came from s 71 and not s 75(4). Of s 59(4) their Honours said that, although phrased as a grant of the same power as that contained in s 57(1), the subsection must be construed "as a supplemental indication of the nature of the power. It merely indicates that the Minister is not bound to decide in accordance with the terms of the warden's recommendation." Of s 75(4) their Honours said that the subsection merely clarified the circumstances in which it might be exercised. Section 105A supplemented the warden's function.

"The result of this statutory process is that, regardless of the content of the 'right in priority', the warden's decision has a discernible legal effect upon the Minister's exercise of discretion.

That conclusion is not affected by those provisions which make clear that the Minister is in no way bound by the recommendation of the warden (s 59(4), s 75(4)). These provisions are but a statutory indication that the weight of those considerations need not be decisive [Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41.] They do not go to show that the consideration is other than one which the Minister is bound to consider."

32 Dawson and Toohey JJ, who were in minority, said at 177 after referring to those sections of the Act concerned with applications for exploration licences and mining leases:

"In this regard the only distinction drawn by the Act between the two forms of tenement is that in the case of a mining lease the Minister may make a grant whether or not the applicant has in all respects complied with the provisions of the Act (s 75(4)(b)). By implication this dispensing power does not exist in the case of an exploration licence."

33 To my mind the question remains, unaffected by binding authority, whether the power found in s 57(1) is conditioned upon compliance with s 118. In other words, as the argument really suggests, the question is whether, in this case, the result of Hot Holdings' non-compliance is that the Minister has no power to grant the application. As the question was put in the Full Court, is compliance with s 118 a precondition to the power of the Minister to exercise a discretion in favour of the applicant under s 57(1)?

34 In 1994, s 59 was replaced by a new section which provides that where a person who wishes to object to the granting of an application for an exploration licence lodges a notice of objection within the prescribed time or, in some circumstances, late, the warden shall hear the application for the exploration licence and shall, as soon as practicable after the hearing of the application, forward to the Minister for the Minister's consideration the notes of evidence, the maps and other relevant documents and a report recommending the grant or refusal of the exploration licence and setting out reasons. The new subs (6) provides that, on receipt of the report, the Minister may grant or refuse the exploration licence as the Minister thinks fit and irrespective of whether:

"(b) the applicant has or has not complied in all respects with the provisions of this Act."

35 On the assumption that a failure to comply with the provisions of the Act nullified the Minister's power under s 57(1) to grant the application before the amendment, the respondents sought to rely upon the amended section. However, I do not think that the amendment retrospectively affects the rights of other applicants who, based on a default under s 118 at the time the Hot Holdings application was filed, argued that they were entitled to the grant of a licence. In Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267, Dixon CJ said:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events."

36 In Fisher v Hebburn Limited [1960] HCA 80; (1960) 105 CLR 188 at 194 Fullagar J said:

"There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement. The rule has been frequently applied to amending statutes relating to workers' compensation, and it has often been held that such amendments apply only in respect of 'accidents' or 'injuries' occurring after their coming into force ... But there is no rule of law that such statutes must be so construed, and it would not be true to say that a retrospective effect can only be avoided by confining the operation of such a statute to subsequently occurring 'accidents' or 'injuries'. It may truly be said to operate prospectively only, although its prospect begins, so to speak, with some other event than accident or injury."

37 There is no indication in Act No 58 of 1994, which introduced the amendment, that the amended s 59 was to operate in respect of non-compliance which occurred before it came into operation. Section 37 of the Interpretation Act 1984 provides:

"(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -

(b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;

(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal."

In my opinion the amended s 59 did not apply so as to affect the nature of the Minister's power under s 57(1) to determine the Hot Holdings application.

38 In support of their submission that non-compliance with s 118 meant that Hot Holdings had failed to comply with a precondition for the grant of its application, the appellant applicants relied upon Hunter Resources Limited v Melville [1988] HCA 5; (1988) 164 CLR 234. That case concerned an application for the grant of a prospecting licence under s 40 of the Act. Section 105(1) provided that, before making an application for a mining tenement other than an exploration licence, the applicant should mark out in the prescribed manner and in the prescribed shape the land in respect of which the mining tenement was sought. Regulation 59 of the Mining Regulations 1981 required a mining tenement to be marked out by fixing pegs at particular intervals. An applicant for a prospecting licence had marked out tenements with pegs at intervals in three places different from those prescribed. The majority of the High Court (Wilson, Dawson and Toohey JJ) upheld the warden's decision to refuse the application for non-compliance with the Regulations. A significant difference between that case and the present case sprang from the terms of s 105A. Under that section, compliance with the initial requirement means, in the case of an application for a prospecting licence, marking out the land concerned in the prescribed manner: see per Wilson J at 245, Dawson J at 252 and Toohey J at 257 - 258. The requirements of s 118 are not linked in any like fashion with any precondition for the grant of an exploration licence.

39 After the decision in Hunter Resources and the decisions of the Full Court and the High Court in Ex Parte Hot Holdings Pty Limited and Hot Holdings Pty Limited v Creasy, the High Court decided Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. In that case the appellant challenged the validity of a broadcasting standard determined by the respondent ABA on the ground that ABA had not performed its function consistently with Australia's obligations in a protocol to a trade agreement between Australia and New Zealand. In particular, s 160 of the Broadcasting Services Act 1992 required ABA to perform its functions in a manner consistent with "(d) Australia's obligations under any convention to which Australia [was] a party or any agreement between Australia and a foreign country". Beginning at 388, McHugh, Gummow, Kirby and Hayne JJ came to consider whether the failure to comply with s 160 meant that cl 9 of the impugned standard was invalid. Their Honours said at [91]:

"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."

40 Having referred to the traditional distinction between acts done in breach of an essential preliminary to the exercise of a statutory power and authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority, their Honours said at 390; [93]:

"In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood [[1978] 1 NSWLR 20 at 23-24] in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' and the division of directory acts into those which have substantially complied with the statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute' ".

See also Barwick v The Law Society of New South Wales [2000] HCA 2; (2000) 74 ALJR 419 at 426.

41 The New South Wales cases refer back to Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214 which concerned the question whether a failure to hold a free conference between the Legislative Assembly and the Legislative Council of New South Wales and the resolution of the Legislative Council not to take part in a joint sitting would result in the invalidity of a statute that was approved at a referendum in accordance with the procedure under the Constitution Act 1902 (NSW). Dixon CJ, McTiernan, Taylor and Windeyer JJ said at 247:

"... before one reaches the conclusion that the failure to fulfil the requirement of holding a free conference will result in the invalidity of the law if adopted, it is natural to treat the fact that the Legislative Council may decline a conference of managers as a reason to be added to the other considerations for holding that it is not a matter going to validity. Lawyers speak of statutory provisions as imperative when any want of strict compliance with them means that the resulting act, be it a statute, a contract or what you will, is null and void. They speak of them as directory when they mean that although they are legal requirements which it is unlawful to disregard, yet failure to fulfil them does not mean that the resulting act is wholly ineffective, is null and void."

42 Tasker v Fullwood [1978] 1 NSWLR 20 raised in the New South Wales Court of Appeal the question whether failure to comply with the provisions of s 24(1A) of the Liquor Act 1912 (NSW) precluded the granting by the Licensing Court of the licence applied for. Section 24(1A) required, inter alia, the production to the Licensing Court of an agreement between a person interested in the business or profits of the business to be carried on under the licence and the applicant evidencing the applicant's full, free and unfettered control of the conduct of the business. The Court (Hope, Glass and Samuels JJA) said at 23 - 24:

"The remaining submission was that the order made by the Court under s 27 granting a conditional licence was not denied legal effect by the failure to produce any agreement between the applicant and the lessor. The submission raises a question of a type which is frequently encountered. The problem arises whenever a judicial or executive act, or the act of a litigant, is subjected by statute to the prior performance of conditions. The numerous decisions in this field have been recently reviewed by this Court: Attorney-General (NSW) ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [[1977] 2 NSWLR 955] and Hatton v Beaumont [[1977] 2 NSWLR 211]. The position of directory enactments has also been expounded in an authoritative but obiter way in Victoria v The Commonwealth [(1975) [1975] HCA 39; 134 CLR 81]. From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklin Stores Pty Ltd case [at 963 et seq]. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont [at 220]. (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v The Commonwealth [at 179, 180]. (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: the Franklins Stores Pty Ltd case [at 965 et seq]. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v The Commonwealth [at 118, 162, 179 and 180]."

43 Their Honours remarked that the requirement under s 24(1A) of the Liquor Act did not admit of substantial compliance. There would either be strict compliance or non-compliance. On that basis, at 24 they narrowed the question to the following:

"Is the requirement upon the applicant that he produce the agreement so cardinal to the object of the statute as to disclose an intention that its complete non-observance should invalidate any order made by the Court? We cannot think so for several reasons. The first is that such a construction necessarily implies that the Court is deprived of any power of dispensation. Yet circumstances may arise where compliance will not be possible. For example, if the party interested declines to execute an agreement, there is no way in which he can be compelled to do so. An intention to allow the Court to decide for itself whether a licence might nevertheless be granted is to be preferred to an intention that such an eventuality should be automatically destructive of jurisdiction."

44 The Attorney General (NSW) ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 concerned the validity of an interim development consent. The issues were whether the Council of the Shire of Sutherland was bound to consult the Planning and Environment Commission before issuing the consent and, if so, whether its failure to do so rendered invalid its interim development consent. At 963 - 964 Reynolds JA, having found that the Council was not required to consult the Commission before issuing the consent, said:

"This conclusion is sufficient to dispose of this aspect of the case but, even if I be wrong and consultation was required, I have come to the view that the failure to consult does not work the invalidity of the consent which issued. The argument which was advanced depends upon a view that, in the legislative scheme, there is no intention that the performance of a duty to consult is a condition precedent to the validity of a consent. In the solution of similar problems, it has been customary for courts to categorize statutory pre-requisites as being, on the one hand, mandatory or imperative and, on the other hand, as directory. This is but a compendious way of stating that, in some cases, the legislature intended that failure to comply with certain requirements would result in the invalidity of the act to which these requirements were precedent or that, on the other hand, non-fulfilment of the requirement did not result in the invalidity of the act.

For over one hundred years since such cases as Liverpool Borough Bank v Turner [(1860) [1860] EngR 1047; 1 John & H 159; 70 ER 703], Caldow v Pixell [(1877) 2 CPD 562] and Howard v Bodington [(1877) 2 PD 203], the basic rule has been as stated by Denman J in Caldow v Pixell [at 566], namely, that the scope and object of the statute are the only guides.

The provision with which we are here concerned is one whereunder a council is, for planning purposes, required to seek the views of some other person or authority before dealing with a development application and, by implication, to pay heed to those views. It is a process to be carried out in private between the council and the referee, and it will be evidenced in their respective files and nowhere be of public record. The consent which may issue following such consultation will not, in the ordinary course, recite the fact of consultation, much less its absence."

45 At 969 his Honour concluded that a provision that the council "shall, in connection with the determination of any application ... consult ..." did not, in terms, make consultation a condition precedent to the grant or refusal of an application. His Honour concluded that even if consultation was required the consent was not by reason of its absence invalid. At 978 Hutley JA adopted the phrase of Gillard J in SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VicRp 32; [1964] VR 229 at 245 to pose the question, "is compliance with the direction 'a peremptory condition for the exercise of a power'?".

46 Hatton v Beaumont [1977] 2 NSWLR 211, also cited in Tasker v Fullwood, concerned an appeal to the Full Bench of the Licensing Court in which the appellants had not, as required by regulation, lodged a deposit within seven days of lodging their notice of appeal or entered into a recognizance within that time. At 223 Hope JA said:

"It is difficult to think that failure to comply strictly with such a provision should impliedly produce nullification of an appeal which has already been instituted. ... The depositing of $20 thirteen days, instead of seven days, after lodging notice of intention to appeal seems almost irrelevant in relation to these substantial issues. If the provisions of reg 14(e) are to be treated as wholly mandatory, a Full Bench could do nothing to rectify any failure to comply within time, no matter how important the issue before it. It would have power only to strike out an appeal which had otherwise been duly instituted. Such a result would seem to defeat, rather than to assist, the 'scope and purpose' of the Act."

"In assessing the significance of the particular provision to the attainment of the general object of the legislation, it is, in my opinion, important to bear in mind the effect of determining that the provision is mandatory. This, in general, will be that non-compliance with the provision will result in the 'total failure': Howard v Bodington [(1877) 2 PD 203 at 210]; of anything sought to be done under the legislation, and of any rights which otherwise would flow from it. And this will be so, whatever be the circumstances of the non-compliance and whatever, in the particular case, be the injustice to flow from it. There will, no doubt, be cases in which such a severe sanction will be necessary or appropriate to the attaining of the general object to be secured by the Act, and I am conscious of the authority which exists for the view that, in the context of judicial proceedings, statutory provisions are generally construed as mandatory: see Chadwick's case [[1977] 1 NSWLR 151 at 156]. But the rigidity of the operation of a provision, if mandatory, and the fact that its consequences will flow regardless of the merits of the individual case, must, in my opinion, be carefully weighed. Before a provision is held mandatory, a court should be clearly satisfied that the part played by the particular provision in the attainment of the general object intended to be secured by the legislation is such that it is necessary or appropriate to visit non-compliance with consequences of that kind. In the present case, I am not satisfied that the provision of security was of such significance in the procedures set up under the regulations."

48 The object of s 118 is to ensure prompt notice of an application for a mining tenement is given to pastoral lease holders of the land, so that they have sufficient notice to enable them to object and to be heard on any objection. The applicant is required within 14 days of the lodging of the application to post a copy of it together with a map by registered post or certified mail to the holder of that lease at a particular place. Failure to comply may have consequences in terms of the processing and ultimate grant of the application, for example, if, as a result, the holder of the pastoral lease is prejudiced. On the other hand, if the applicant complies strictly with the requirements of s 118, the process is more likely to go forward expeditiously. The avoidance of prejudice and delay explains the particularity of service required. But I am not persuaded that it can ever have been the intention of the legislature that a failure by the applicant to comply in every respect with the precise requirements of s 118 within 14 days of the lodging of the application renders the application ineffective in the sense that it can never be granted. Non-compliance is no doubt a factor to be taken into account, but, in my opinion, does not remove the Minister's power to grant the exploration licence. In fact, the pastoral lease holders did receive notice and, in the case of Arimco and Oresearch, did lodge and pursue objections to the applications. It is significant that compliance with s 118 is not an element in determining whether there was compliance with "the initial requirement" within s 105A.

49 To deny the power under s 57(1) in the case of non-compliance with s 118 would produce the considerable inconvenience of an applicant not proceeding to have its application dealt with on the merits but rather by means of lengthy litigation about whether s 118 had been complied with. For example, there could be lengthy debate about whether the copy of the application contained a map which clearly delineated the boundaries of the land or whether the place chosen to send it was the leaseholder's "usual" place of abode or business. Similar inconvenience would arise from non-compliance with many other provisions of the Act. For example, a question could be raised whether, in making the application, the accompanying statement required under s 58(1)(b) specified "the details of the programme of work proposed to be carried out" or failed to do so.

50 Section 57(1) of the Act empowered the Minister, after receiving a recommendation of the warden in accordance with s 59, to grant to the applicant an exploration licence. Section 59(4) was a supplemental indication of the nature of the power and could not be read as restricting it except by making it plain that, before exercise of the power, the Minister should receive and consider, as the High Court pointed out, the material referred to and the warden's recommendation. In particular, neither s 57(1) nor s 59(4) expressly required, as a precondition of the exercise of the Minister's power to grant a licence, that the applicant had in all respects complied with the provisions of the Act. No more did s 71 or s 75(4) restrict the power of the Minister to grant a mining lease. The argument is that, by implication and obliquely, s 75(4) operates to restrict the power of the Minister to grant an exploration licence. To my mind this gives s 118 an effect not intended and quite unnecessary to achieve its purpose, as was recognised by s 75(4)(b). Despite, and with due deference to, the opinions expressed to the contrary, I am of the opinion that non-compliance with s 118 did not render ineffective Hot Holdings' application so as to deny the Minister power to grant an exploration licence under s 57(1). I repeat that non-compliance with s 118 may, in the circumstances of a particular case, be a factor in deciding whether or not an exploration licence should be granted.

51 In the light of my opinion as to the operation of the discretion under s 57(1), particularly having regard to s 118, it is unnecessary to consider this alternative argument.

52 Even so, I should deal with it. On 16 and 17 June 1994 Arimco and Oresearch on their application for certiorari (CIV 1745/93) submitted to the Full Court that Hot Holdings had not complied with s 118. Insofar as the members of the Full Court touched upon that issue, what was said favoured Arimco and Oresearch. But the Full Court discharged the orders nisi on the basis that certiorari did not lie because the warden's decision did not affect the applicants' rights. As Nicholson J said in the passage I have quoted:

"In the case of s 118, non-compliance is relevant to the act of grant not to the validity of the application or the question of priority."

53 Arimco and Oresearch's application was directed, inter alia, to the warden's decision to recommend Hot Holdings' application for approval. In the High Court ((1996) 185 CLR 149 at 158) Brennan CJ, Gaudron and Gummow JJ said:

"Arimco and Oresearch were concerned, not so much with the Warden's decision to hold a ballot as with the nature of the priority right conferred by s 105A(1) and the nature of the Minister's discretion to grant mining tenements."

54 The successful application for leave to appeal to the High Court was made by Hot Holdings and Mr R W Creasy. Arimco and Oresearch did not seek leave to appeal. Their counsel submitted to the High Court (at 152) that they did not seek priority and were not concerned in the decision to hold a ballot. Special leave to appeal to the High Court was "limited to the issue 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 Act (185 CLR at 158).

55 The orders set aside by the High Court were in the matters CIV 1634 of 1993, the application by Hot Holdings, and CIV 1931 of 1993, the application by Mr R W Creasy. The High Court remitted those matters to the Full Court to consider whether certiorari should issue. When they came back before the Full Court (the second Full Court decision), counsel for Arimco and Oresearch told the Court that his clients did not join issue with the other parties on the substantive issues of the writ in respect of the warden's decision to hold a s 105A ballot. Counsel said:

"What we are concerned about is the content of that writ and the extent to which it may affect the exercise of the Minister's discretion ultimately. I understand that it has been conceded for the purposes of today's hearing that that is not an issue any further. It was, of course, something which was touched upon by the Full Court previously and I think that arose fairly out of the s 118 issue that arose in relation to Arimco and Oresearch's application for an order nisi. ... That being the case, we don't need to make any further submissions on that particular point."

56 At 432 Malcolm CJ said that the order discharging the order nisi in Arimco and Oresearch's application CIV 1745 of 1993 remained on foot. At 440 Rowland J, with whom Steytler J agreed on this point, said:

"There is one other matter which was canvassed before this Court. In the Full Court in the earlier 1994 proceedings, Arimco Mining Pty Ltd and Oresearch NL sought to make absolute an order nisi in relation to part of the Warden's decision which dealt with the effect of s 118 of the Mining Act. Both Nicholson J and I dealt with the issues raised; but, in the end, the Court held that it had no jurisdiction to grant certiorari and the order nisi was discharged. Absent any appeal, that decision should stand.

Counsel for those two companies appeared before us as respondents to the other applications and confirmed that neither company sought leave to disturb this Court's order before the High Court. They are content to accept that their order nisi has been discharged and they have not sought to have the matter re-opened. It follows that I say no more about that matter."

57 Malcolm CJ did not expressly deal with the point but did say:

"The only applications now before us are those of Hot Holdings and Mr M G Creasy."

58 The application made by Arimco and Oresearch for prerogative relief was directed to the warden's recommendation that Hot Holdings' application for an exploration licence be approved. Hot Holdings' application was directed to the decision of the warden that it should take part in a ballot. Arimco and Oresearch failed in the Full Court because it was held certiorari would not lie. Though the Full Court was apprised of the issue about the effect of s 118, its views about that section were not necessary to the decision and were obiter dicta. Arimco and Oresearch did not challenge the Full Court's decision.

59 The appellant applicants submitted that on 29 July 1996 counsel for Arimco and Oresearch were submitting in the passage that I have quoted that the contents of the warden's report could not bind the Minister. At that stage, there was not even a report, but even if there had been, the High Court's decision would not have enabled Arimco and Oresearch to raise the question of non-compliance with s 118 in the Full Court. The concession was simply that s 118 was not an issue in Hot Holdings' renewed application for certiorari.

60 In Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466 Fullagar J said:

"The rule as to res judicata can be stated sufficiently for present purposes by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims 'interest reipublicae ut sit finis litium' and 'nemo debet bis vexari pro eadem causa'.

The rule as to issue estoppel is generally stated in the words of Lord Ellenborough in Outram v Morewood [(1803) 3 East at 355 (102 ER at 633)]. His Lordship said that parties and privies are 'precluded from contending to the contrary of that point, or a matter of fact, which having been once distinctly put in issue by them ... has been, on such issue joined, solemnly found against them.' This is, I think, a true case of estoppel, analogous to estoppel by deed and estoppel by representation. The same rule was concisely stated by Dixon J in Blair v Curran [(1939) [1939] HCA 23; 62 CLR 464 at 531] where his Honour said:

'A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies'."

In the present case no question of res judicata so understood arises.

"Where the plea is of issue estoppel, any material may be looked at which will show what issues were raised and decided. Reasons given for the judgment pronounced are likely to be particularly important for this purpose ...

It should perhaps be added that, as Dixon J pointed out in Blair v Curran [at 532], the estoppel, so far as it applies to facts, is confined to ultimate facts. It does not extend to mere evidentiary facts."

62 In the present case, to the extent that the s 118 point was litigated in the Full Court or in the High Court, neither found against the appellant applicants. To adopt the language of Diplock LJ in Thoday v Thoday [1964] P 181 at 198:

"neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was."

In the present case the appellant applicants rely upon what was said in the Full Court and by the minority in the High Court in Hot Holdings v Creasy.

63 In Anshun Gibbs CJ, Mason and Aickin JJ, in a joint judgment, having concluded that the case was not one of issue estoppel in the strict sense, came at 598 to consider whether the case fell within the extended principle expressed by Sir James Wigram VC in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100 at 115; [1843] EngR 917; 67 ER 313 at 319). The principle so stated by the Vice Chancellor was:

"[w]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject matter of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

64 At 598 - 599 Gibbs CJ, Mason and Aickin JJ observed:

"Although it has been said that the principle operates so as to extend the doctrines of issue estoppel as well as res judicata, its application to cases of issue estoppel is to be treated with caution."

"In considering whether failure to plead a defence available in an earlier action gives rise to an estoppel in subsequent litigation, early authorities distinguish between failure to traverse an allegation made by the other side and failure to plead affirmative matters which would not have conflicted with any traversable allegation, eg a plea by way of confession and avoidance."

66 At 602 - 603 their Honours, after referring to the statements of Somervell LJ in Greenhalgh v Mallard [1947] 2 All ER 255 at 257 and Lord Wilberforce in Brisbane City Council v Attorney General (Qld) [1979] AC 411 at 425; (1978) 52 ALJR 599 at 602, said:

"[In] applying the Henderson v Henderson principle to a plaintiff said to be estopped from bringing a new action by reason of the dismissal of an earlier action, Somervell LJ and Lord Wilberforce insisted that the issue in question was so clearly part of the subject matter of the initial litigation and so clearly could have been raised that it would be an abuse of process to allow a new proceeding. Even then the abuse of process test is not one of great utility. And its utility is no more evident when it is applied to a plaintiff's new proceeding which is said to be estopped because the plaintiff omitted to plead a defence in an earlier action.

In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few."

67 In Chamberlain v Deputy Commission of Taxation [1988] HCA 21; (1988) 164 CLR 502 at 509 Deane, Toohey and Gaudron JJ said that:

"In truth Henderson v Henderson was not concerned with res judicata in its strict sense but rather with its implications when an issue is sought to be raised 'which could and should have been litigated in the earlier proceedings': Port of Melbourne Authority."

"The majority discussion of Henderson v Henderson in Port of Melbourne Authority v Anshun Pty Ltd was upon the basis that the latter case was not one of res judicata; there was a cause of action remaining. The question was whether the plaintiff ought to have been allowed to pursue that cause of action having regard to the fact that the right asserted could and should have been raised in the earlier action in which judgment had been entered. To have allowed it to do so may have resulted in contradictory judgments which ought not be permitted save in special circumstances."

69 To my mind no question of issue estoppel arises. The second Full Court decision in 1996 did not directly involve as an issue of fact or of law the effect of s 118 on the Minister's discretion to grant an exploration licence. It concerned only the warden's decision to order a ballot. Nor, in my opinion, could it be said that it was relevant to the subject matter of Hot Holdings' application then before the Court and that it was unreasonable for the appellant applicants not to rely on it.

70 In deciding to grant Hot Holdings' application, the Minister adopted a recommendation in the Director General's minute of 30 June 1998. The appellant applicants submitted that the facts disclosed justified a reasonable apprehension that the Minister might not have brought a fair and unprejudiced mind to the resolution of the question whether the Hot Holdings application should have been granted.

71 The evidence before Heenan J was that a senior officer of the Department of Minerals and Energy, Victor Miasi, was the registered holder of 40,000 fully paid shares in AuDAX Resources NL which, in November 1993, had entered into an option agreement to purchase the exploration licence in question from Hot Holdings. Mr Miasi held these shares at a time when he was the Manager, Tenure Branch of the Department and involved in the preparation of the minute to the Minister. In this minute the Director General advised the Minister that the amendment of the Act had overtaken the opinions expressed in the obiter dicta of the members of the Full Court to the effect that compliance with s 118 must be a condition of the grant of an exploration licence. The Director General said that in his view it was open to the Minister "to accept that the service effected by the parties amounts to service for the purpose of the Act" and that s 59(6) enabled the grant of an exploration licence irrespective of any non-compliance with the provisions of the Act.

72 The appellant applicants contended that the Minister's decision was affected by bias or at least gave rise to a reasonable apprehension of bias and that the Minister had failed to take into account the pecuniary interest of Mr Miasi, of which he was unaware, when adopting the recommendation, as a consequence of which the appellant applicants were denied procedural fairness. In addition to Mr Miasi, the departmental officers involved in considering the warden's recommendation were Mr William Phillips, the Director, Mineral Titles Division of the Department, Mr Roy Burton, the General Manager, Policy and Legislation in the Mineral Titles Division of the Department and Mr David Hicks. In considering bias, Heenan J said at [19] - [22]:

"... The evidence presently available shows that, after the warden had delivered his report and the Minister had received submissions from interested parties, Mr Burton discussed the report with Mr Phillips. They agreed that there was no compelling reason to depart from the recommendation made by the warden. Mr Phillips then requested Mr Miasi to prepare a draft minute 'to reflect this tentative position'. In his affidavit Mr Burton says, 'I believe that Mr Miasi was present when Mr Phillips and I discussed the matter and decided that the draft minute should support the Warden's recommendation. However Mr Miasi did not influence our decision.'

Mr David Hicks, another officer in the same Division of the Department, has sworn an affidavit in which he says that in either February or March 1998 Mr Miasi requested him to draft a minute supporting the recommendation made by the warden. In his affidavit Mr Hicks says that Mr Miasi supplied him with a handwritten draft which set out the history of the application, the litigation in the Warden's Court, the Supreme Court and the High Court culminating in the ballot held by the warden. As the handwritten draft had been destroyed, Mr Hicks reproduced in his affidavit terms which, he says, are very similar to those of that draft. The reproduction includes the following passage:

'The process that you are now required by the Mining Act to follow involves your consideration of the Hot application which has priority and should you decide to grant this application the issues in relation to the remaining competing applications as to their merit become irrelevant due to no ground then being available for these.

This matter has now been the subject of litigation for almost six years and a significant body of information has been received on the various issues during that time, however the matters that you are required by law to take note of are the Warden's recommendation and any Superior Court direction and you may of course take into account any other matter you choose in exercising your discretion including the submissions before you in determining the applications.

There is no compelling reason why you should not follow the Warden's recommendation in this matter.

The issue of whether Hot has fully complied with section 118 of the Act was the subject of consideration in the Warden's Court where the Warden found as a matter of fact that all parties including Hot had complied with this provision.

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'.

'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.'

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."

73 Counsel for the appellant applicants did not suggest that the Minister decided as he did in order to benefit Mr Miasi or that the Minister personally was biased. Heenan J said that the evidence available before him showed 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. His Honour regarded this as decisive and concluded that, from the perspective of a fair minded and informed member of the public, the relevant circumstances were 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. His Honour concluded that there was no basis for an arguable case in relation to this ground of the application for an order nisi. From that decision the appellant applicants have appealed.

74 At the hearing in this Court the appellant applicants applied by notice of motion to lead further evidence in the form of an affidavit by Philip Pullinger sworn on 22 June 1999 that, in the course of correspondence between Mr Pullinger and Mr Phillips, it was revealed that Mr Phillips was aware during 1998 that in 1996 his adult son, Dean William Phillips, had purchased some AuDAX Resources NL shares. After he received a letter from Mr Pullinger's firm dated 23 April 1999, Mr Phillips asked his son how many of the shares he had purchased and whether he still owned any. His son told him that in 1996 he had purchased 18,000 shares and that he still owned them. This material became available to the appellant applicants' advisers on or about 22 June 1999, the day before Heenan J gave his decision. The information was first sought from Mr Phillips on 23 April 1999. I think the circumstances explain sufficiently the failure of the appellant applicants to put this material before Heenan J.

75 The question arises whether the material is relevant to the bias issue which, in large measure, depends upon whether it is material which could give support to the appellant applicants' claim of apprehended bias. Mr Phillips swore an affidavit on 15 November 1999 which was read to this Court. Relevantly he said that the warden's decision in respect of the ballot delivered on 8 January 1998 and the procedure to be followed regarding allowing the parties to make submissions to the Minister was discussed on several occasions by Mr Burton, and himself. Mr Phillips directed Mr Burton to ensure that proper procedures were followed and to obtain legal advice on all contentious issues. Mr Phillips said that he asked Mr Burton to assume responsibility for the final minute to the Minister but said that he would assist by reviewing drafts to ensure that the final product addressed all relevant issues. In the initial discussions with Mr Burton, they agreed that, as a starting point, Mr Miasi be requested to arrange the preparation of a draft minute. They agreed that this minute should be from the Director General to the Minister supporting the recommendation made by the warden on the basis that there was no compelling reason not to follow that recommendation. Both Mr Burton and he considered that the warden would have carefully considered the various court rulings and the merits of the competing applications that had been made on the submissions made to him by the competing parties. Mr Phillips reviewed and amended the draft minute that was prepared and this was further reviewed and amended by Mr Burton before the final minute dated 30 June 1998. Mr Phillips did not alter the original recommendation agreed to by Mr Burton and himself. He was not present at two meetings between Mr Burton and the Minister on 16 and 17 July 1998 when the minute dated 30 June 1998 was discussed. Mr Phillips swore that Mr Miasi did not influence his decision to support the warden's recommendation. He said Mr Miasi did not express a view as the merits of the competing applications.

76 Mr Phillips deposed as follows to his son's shareholding in AuDAX Resources:

"9. With regard to the issue of shareholdings in AuDAX Resources NL, I became aware some time in 1996 that my son Dean William Phillips ('my son') had purchased some shares in the company because he told me he had done so. At that time my son was 27 years old and living independently of me. Due to illness he had been unable to continue his employment and had received a payout from his employer. During a telephone call to see how he was going he told me he had used some of the money to purchase shares in several mining companies, naming AuDAX Resources NL as one of them. He did not provide me with any other details, nor did I ask him to tell me.

10. I knew from my son's general financial position that any such shareholding would not be significant. The matter of his shareholding was not further discussed with him until after I received a letter from Pullinger Stewart on 23 April 1999. I then asked my son how many of the shares he had purchased and whether he still held any. He told me that on 10 May 1996 he purchased 18,000 shares in AuDAX Resources NL and that he still held them.

11. I have never held any mining shares, nor advised any family member (including my son) to purchase any. I have no interest in my son's shares in AuDAX Resources NL nor any interest in any other persons [sic] shares in that company or any other mining shares.

12. Prior to receiving the letter from Pullinger Stewart referred to in paragraph 10 above I was not aware of whether my son still held shares. Neither was I aware then or now of any other family member or associate (barring Mr Miasi) holding AuDAX Resources NL shares. I had not told anyone in the Department of my son's shares prior to receiving that letter as I believed that it was irrelevant to the exercise of my official duties."

77 At the time the minute of 30 June 1998 was signed by the Director General and the time the Minister considered that minute, neither the Director General nor the Minister were aware of Mr Phillips' son's shareholding in AuDAX or, to the best of Mr Phillips' knowledge, of Mr Miasi's shareholding in that company. Mr Phillips' affidavit concluded:

"15. At no time was I influenced in my official duties by the knowledge that my son had purchased shares in AuDAX Resources NL. In 1998 I did not know whether he still held the shares. At all relevant times my decisions and actions in this matter were motivated by my knowledge that I had a duty to assess the competing applications on the basis of previous Court rulings, the merits of the applications and any legal advice we received."

Mr Phillips was not required for cross-examination. Mr Miasi did not give evidence.

78 I should say at once that I think it unfortunate and undesirable that a senior officer in the Department such as Mr Miasi should hold shares in a company interested in the acquisition of an exploration licence the subject of an application, at least without disclosing that fact to his superiors in the Department.

79 In his reasons for judgment Heenan J referred to the decision of the High Court in Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41. The appellant applicants submitted that the test for determining whether a decision was invalidated by an apprehension that the decision-maker was biased, which test is derived from the judgment of Mason CJ and McHugh J in that case at 53, was whether the relevant circumstances were such as to give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the decision-maker had not or would not discharge its task impartially. The assumed knowledge of the member of the public is knowledge of "the material objective facts": see per Deane J at 75.

80 In evidence was a policy statement of the Department concerning "pecuniary interest/non-pecuniary interest" of employees which stated in part:

"The external interests of employees of the Department of Minerals and Energy, including family members and friends, must not influence or appear to influence the ability of employees to carry out their functions as representatives of the Department.

A potential conflict of interest occurs where a person has an interest in a matter under consideration in their working environment. An actual conflict arises where the person fails to disclose a potential conflict, and participates in deliberations on the matter as if the conflict did not exist.

Pecuniary interest occurs when an employee's involvement in a work-related issue provides the employee with a financial gain or reward. An example could be where an employee is involved in the processing of an application for a mining tenement received from a member of their family.

Employees finding themselves in such situations should declare the pecuniary interest to their manager immediately. That manager must then exclude the employee from the process.

In order to avoid any perceived conflict of interest, it is strongly recommended that all employees divest themselves of any shares in mining and petroleum companies operating in Western Australia."

81 Heenan J found, on the evidence before him, that Mr Miasi had not played any part in forming the decision of Messrs Burton and Phillips that the draft minute should support the warden's recommendation. This finding was not challenged. Mr Burton was not cross-examined. This Court now has the benefit of Mr Phillips' evidence.

82 The decision-maker was the Minister. There was no evidence that the Minister had any direct or indirect contact with Mr Miasi about this application. The connection on its face between the minute from the Department of Minerals and Energy to the Minister of 30 June 1998 was a reference "RB/WP/VM/DH:SS". There was evidence that this reference was a reference to "Roy Burton, William Phillips, Victor Miasi and David Hicks". There was evidence that this reference meant that those persons were co-authors of the minute.

83 As I said earlier, it was unfortunate that Mr Miasi did not, as the policy statement required, disclose his interest in AuDAX to a senior officer. I have no doubt, with due respect, that Heenan J should have allowed this question to go forward as a basis for making the order nisi absolute and, to that extent, the appeal must succeed. Furthermore, I am of opinion that the apparent connection between Mr Miasi and the recommendation of the Department which went forward to the Minister is such as to give rise to a reasonable apprehension of bias. Mr Miasi had a direct, though relatively small, pecuniary interest in the outcome of the Hot Holdings application. Had he been the decision-maker, this would have resulted in his automatic disqualification regardless of the particular circumstances.

84 In R v Gough [1993] UKHL 1; [1993] AC 646 at 659 - 660 Lord Goff of Chieveley said:

"A layman might well wonder why the function of a court in cases such as these should not simply be to conduct an inquiry into the question whether the tribunal was in fact biased. After all it is alleged that, for example, a justice or a juryman was biased, ie that he was motivated by a desire unfairly to favour one side or to disfavour the other. Why does the court not simply decide whether that was in fact the case? The answer, as always, is that it is more complicated than that. First of all, there are difficulties about exploring the actual state of mind of a justice or juryman. In the case of both, such an inquiry has been thought to be undesirable; and in the case of the juryman in particular, there has long been an inhibition against, so to speak, entering the jury room and finding out what any particular juryman actually thought at the time of decision. But there is also the simple fact that bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias - a point stressed by Devlin LJ in Reg v Barnsley Licensing Justices, Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2 QB 167, 187. In any event, there is an overriding public interest that there should be confidence in the integrity of the administration of justice, which is always associated with the statement of Lord Hewart CJ in Rex v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, 259, that it is 'of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.' At all events, the approach of the law has been (save on the very rare occasion where actual bias is proved) to look at the relevant circumstances and to consider whether there is such a degree of possibility of bias that the decision in question should not be allowed to stand."

"... I wish to draw attention to the fact that there are certain cases in which it has been considered that the circumstances are such that they must inevitably shake public confidence in the integrity of the administration of justice if the decision is to be allowed to stand. Such cases attract the full force of Lord Hewart CJ's requirement that justice must not only be done but must manifestly be seen to be done. These cases arise where a person sitting in a judicial capacity has a pecuniary interest in the outcome of the proceedings. In such a case, as Blackburn J said in Reg v Rand (1866) LR 1 QB 230, 232: 'any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter.' The principle is expressed in the maxim that nobody may be judge in his own cause (nemo judex in sua causa). Perhaps the most famous case in which the principle was applied is Dimes v Proprietors of Grand Junction Canal [1852] EngR 789; (1852) 3 HL Cas 759, in which decrees affirmed by Lord Cottenham LC in favour of a canal company in which he was a substantial shareholder were set aside by this House, which then proceeded to consider the matter on its merits, and in fact itself affirmed the decrees. Lord Campbell said, at p 793:

'No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred.'

In such a case, therefore, not only is it irrelevant that there was in fact no bias on the part of the tribunal, but there is no question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case. The nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand."

86 At 671 - 672 Lord Woolf considered the test to be adopted in deciding whether a decision should be set aside on the grounds of alleged bias and said:

"The test to be applied in each case has as its source the maximum that nobody may be a judge in his own cause. No distinction arises in the application of the test because it is the clerk to the justices rather than the justices themselves who are alleged to be biased. A clerk to the justices is part of the judicial process in the magistrates' court. This is accepted by Lord Hewart CJ, when he said in his judgment in Rex v Sussex Justices, Ex parte McCarthy at 259, that the clerk's position 'was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction.' (The other position, being a member of the firm of solicitors acting for the other driver who was involved in the accident which gave rise to the prosecution.)

This is also made clear in the judgment in Reg v Cambourne Justices, Ex parte Pearce [1955] 1 QB 41, where the facts were very similar to those in the Sussex Justices case. The Camborne Justices case also involved a justices' clerk. The proceedings before the justices were the result of an information under the Food and Drugs Act 1938 laid on behalf of the county council. The clerk to the justices was at the time a member of the council, but not a member of the council's health committee responsible for laying the information. At the hearing he was sent for to advise the justices on a point of law, but according to the evidence put before the Divisional Court he did not discuss the facts of the case and having given his advice returned to the court. Unlike the Sussex Justices case, where the argument appears to have been limited (the applicant was not called upon to address the court) and the judgment was not reserved, in the Camborne Justices case the matter was fully argued, Sir Reginald Manningham-Buller QC, S-G and J P Ashworth appearing as amici curiae and a reserve judgment of the court was given by Slade J on behalf of a Divisional Court which was presided over by Lord Goddard CJ. That judgment described the question which the court had to decide, at p47, as being:

'What interest in a judicial or quasi-judicial proceeding does the law regard as sufficient to incapacitate a person from adjudicating or assisting in adjudicating on it upon the ground of bias or appearance of bias?'

To that question the court gave the answer, at p51:

'that to disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject matter of the proceeding, a real likelihood of bias must be shown.' "

"I therefore suggest that the Sussex Justices case [1924] 1 KB 256 neither creates, nor should it be placed in, a separate category. The proper test which Lord Goff has identified should have been applied in that case as it was in the Camborne Justices case [1955] 1 QB 41. There is only one established special category and that exists where the tribunal has a pecuniary or proprietary interest in the subject matter of the proceedings as in Dimes v Proprietors of Grand Junction Canal, [1852] EngR 789; 3 HL Cas 759. The courts should hesitate long before creating any other special category since this will immediately create uncertainty as to what are the parameters of that category and what is the test to be applied in the case of that category. The real danger test is quite capable of producing the right answer and ensure that the purity of justice is maintained across the range of situations where bias may exist."

88 Although in Webb v The Queen at 51, 71 and 88 the High Court rejected the "real danger test", where the decision-maker has a pecuniary or proprietary interest in the subject matter of the proceedings, it matters not that the decision-maker claims to have remained uninfluenced by that interest. The test remains an objective one. However, as Deane J pointed out in Webb v The Queen at 75 automatic disqualification should be confined to cases of direct pecuniary interest. Even so, Mr Miasi's pecuniary interest in the outcome of the license application is significant in considering whether the circumstances were such as to give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the Minister's decision was not an impartial one.

89 In Dovade Pty Ltd v Westpac Banking Group [1999] NSWCA 113; (1999) 46 NSWLR 168 at 187 the New South Wales Court of Appeal said:

"In Webb (at 75), Deane J stated that he saw great force in the view expressed by Lord Goff and Lord Woolf in R v Gough [1993] UKHL 1; [1993] AC 646 at 664 and 673 to the effect that automatic disqualification should be confined to cases of direct pecuniary interest in the outcome of the proceedings. Deane J added that this did not deny that there would be cases where such a direct pecuniary interest does not exist but where the nature of the relevant interest and/or relationship is such that it is obvious that the person concerned is disqualified by reason of a reasonable apprehension of bias. His Honour gave, as an example of the latter category, the situation where a dependant spouse or child had a direct pecuniary interest in the proceedings (our emphasis): see footnotes 35 and 28 in Deane J's judgment."

90 For example, if Mr Phillips was the decision-maker, he would not be disqualified simply because of his son's interest in the shares in AuDAX. But again this shareholding is significant, when looked at, as it must be, in the circumstance of Mr Miasi's shareholding. These circumstances are assumed all to be known to the informed member of the public and in that sense must be aggregated: see Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142. Once again, although the interest of a relation was known, it was not disclosed. In Dovade the Court said at 190:

"If any general principle can be derived from the discussion in Auckland Casino Ltd, it is that a reasonable apprehension of bias may well arise in a case where a close member of a judge's family owns an asset such as a parcel of shares, to the knowledge of the judge, in circumstances where the outcome of the dispute might affect the value of that property. This is not to be seen as a categorical statement, or one incapable of being subject to proper exception. But this is clearly a situation where the Livesey [Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288] principle may apply depending on the circumstances."

91 In my opinion, the holding by an officer in the Department who had taken part, albeit at the periphery, in the giving of advice to grant an exploration licence on which advice the Minister acted, of an undisclosed share interest in a company with a direct interest in the grant of the exploration licence must give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the Minister, acting on or taking account of such advice, which he believed was impartial, but which it could fairly be suspected was not, had himself for this reason not acted impartially.

92 Mr Miasi's non-disclosure of his share holding and the interest of Mr Phillips's son, also undisclosed, strengthen the suspicion. The trial judge's findings that Mr Miasi did not play any part in forming the decision of Messrs Burton and Phillips and the evidence of those two officers that their decisions were not influenced by Mr Miasi, or in the case of Mr Phillips by his knowledge that his son had purchased shares in AuDAX Resources, are not relevant to a determination of whether the circumstances gave rise to a reasonable apprehension or suspicion of partiality. In Najjar v Haines (1991) 25 NSWLR 224 at 241 Clarke JA referred to the decision-maker of integrity "who honestly endeavours to hold the scales even but, as a consequence of his connection with one of the parties, sub-consciously gives greater weight to the points of view put forward by that party." Compare Holyoak v R, unreported; SCt of WA; Library No 950465, 7 September 1995 and see Aronson and Dyer, Judicial Review of Administrative Action 2nd ed, (2000) at 460. It is the appearance which counts.

93 The Minister's decision is infected, even though he acted unwittingly on this tainted advice. The fair minded and informed member of the public must be taken to know that the Minister's decision was likely to have been influenced by the Director General's minute in the preparation of which one person with a direct pecuniary interest and another, whose son had a direct pecuniary interest, had taken part. In my opinion, those circumstances give rise to a reasonable apprehension or suspicion on the part of that member of the public that the Minister's decision was not an impartial one. All this falls under the general umbrella of a reasonable apprehension of bias. This vitiates the Minister's decision which must, accordingly, be quashed.

Minister's reliance on Director General's minute

94 Before Heenan J the appellant applicants submitted that a reading of the letter of 10 August 1998, in which the Minister advised the appellant applicants of his decision, led to the inference that the Minister did not weigh up or consider the merits between the competing applicants, but instead 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", as was said to be required by what the High Court had said in Hot Holdings at 169. Their Honours said:

"It is not necessary to decide upon the nature of the 'right in priority'. However, there were submissions on the point presented to the Court and it seems appropriate to make some comment upon them. In essence, two alternative views of the right in priority were suggested. Hot Holdings submitted that the applicant with priority under s 105A is entitled to have the Minister deal with its application without regard to competing applications. In other words, the Minister begins by considering only the first application. Subsequent applications are considered only if the former fails for some reason. In contrast, Arimco and Oresearch submitted 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'. In other words, the Minister considers all the applications which are before the Minister and simply bears in mind that one was first in time. In that situation, where all other things are equal, that first in time will succeed."

95 Although their Honours acknowledged that there was some support for the former view in Stow v Mineral Holdings (Australia) Pty Ltd [1979] HCA 30; (1977) 180 CLR 295, at 170 they said:

"It appears that the latter view is preferable. That view has gained some currency. Brinsden J, when dealing with s 105A of the Act in Tortola Pty Ltd v Saladar Pty Ltd & Holloway [1985] WAR 195 at 205, said:

'Perhaps (but without deciding) so far as the Minister is concerned the section should be read as providing that if all other things are equal the right in priority should be afforded to the earlier application'."

96 Their Honours acknowledged that it was unnecessary to decide the issue and in my opinion it is unnecessary to decide it on this application. As Heenan J said, the submission of the appellant applicants was 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 showed 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 was no basis for concluding that the Minister failed to take all relevant matters into consideration before deciding to grant the application of Hot Holdings. No sound ground is shown for challenging Heenan J's conclusion and, in my opinion, his Honour rightly held that there was no basis for an arguable case on that ground and the appeal against that part of his decision should be rejected.

1. Appeal allowed from Heenan J's decision that there was no basis for an arguable case of reasonable apprehension or suspicion of lack of impartiality on the part of the Minister.

2. Make absolute the order nisi for certiorari and quash the Minister's decision.

3. Make absolute the order nisi for prohibition prohibiting the Minister from acting on his decision of 10 August 1998 to grant to Hot Holdings Pty Limited its application 36/215 for an exploration licence pursuant to the Mining Act 1978.

4. The parties to have 14 days from the date of this judgment to make such submissions as they may be advised on costs.