Gold And Copper Resources Pty Limited v Minister For Resources and Energy

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62 CLR 24 Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171; (2008) 245 ALR 501 Minister for Immigration and Citizenship v SZMDS [2010] HCA 15; (2010) 240 CLR 611 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 Moorebank Recyclers Pty Limited v Liverpool City Council [2009] NSWLEC 100 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 Sharples v Minister for Local Government [2008] NSWLEC 328; (2008) 166 LGERA 302 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 ; (2010) 78 NSWLR 704 WR Carpenter Holdings Pty Limited v Commissioner of Taxation of the Commonwealth of Australia [2008] HCA 33; (2008) 237 CLR 198 Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action, 4th edition (2009) Thomson Reuters Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, 5th ed (2013) Thomson Reuters Category: Principal judgment Parties: Gold And Copper Resources Pty Limited (Applicant) Minister For Resources and Energy (First Respondent) Newcrest Mining Limited (Second Respondent) Representation: Mr M Leeming SC with Mr J Giles (Applicant) Mr T Hale SC with Mr J Maston (First Respondent) Mr I Jackman SC with Mr S Lawrance (Second Respondent) Corrs Chambers Westgarth (Applicant) Crown Solicitor's Office (First Respondent) Allens (Second Respondent) File Number(s): 80736 of 2011

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Judgment 1Gold and Copper Resources Pty Ltd (Gold and Copper) challenges in these judicial review proceedings the grant of a renewal of exploration licence EL 3856 on 14 March 2011 to Newcrest for an area of 120 sq kms near the existing Cadia goldmine in the Cadia Valley, south-west of Orange. The relief sought includes a declaration of invalidity of the renewal. This is the seventh renewal of EL 3856 granted to Newcrest by the Minister acting on this occasion through his delegate, Mr New. 2There are four grounds of review raised by Gold and Copper. The cross-summons filed by Newcrest claims that if the Court quashes the decision to grant the seventh renewal, Newcrest's renewal application should be remitted to the Minister to be considered according to law. 3The parties agree that the Court has jurisdiction to decide this matter under s 293(1)(q) of the Mining Act 1992 (the Mining Act) and s 21C of the Land and Environment Court Act 1979.

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Mining Act 1992 4The Minister was at all material times the Minister for Resources and Energy with functions under the Mining Act and by s 363 of that Act was authorised to delegate any function under the Mining Act to any person. In the Amended Points of Claim (APOC), a reference to the Minister includes any delegate of the Minister as so authorised. 5Newcrest's exploration licence was originally granted in 1991 under the Mining Act 1973. That Act was repealed by s 389(1) of the Mining Act 1992. An exploration licence granted under the 1973 Act and in force immediately before the commencement of the 1992 Act is taken to be an exploration licence granted under the 1992 Act: s 391 and Sch 6, Pt 2, cl 4(1). 6At the time of the application for a renewal of EL 3856 in March 2009 the Mining Act 1992 was in force. By the time the application was granted on 14 March 2011 the Mining Act had been amended. Transitional provisions in the Mining Amendment Act 2008 provided that applications properly made under the unamended Act as in force in 2009 were able to be considered under the amended Mining Act. Schedule 6, Pt 10, cl 101 of the Mining Act states that a pending application for the renewal of an authorisation, which includes an authority, not determined before the 2008 amending Act which complied with the unamended Act is taken to be duly made under the amended Act. 7There was no dispute that the application for renewal complied with the requirements of the Mining Act as in force in 2009 (the unamended Act). Under s 13 an application for an exploration licence had to contain certain information being the group of minerals in relation to which it was made, be accompanied by required particulars (s 13(3)(a)-(b)), the appropriate lodgment fee and be lodged with a mining registrar. Section 113 as in force in 2009 provided: 113 Applications for renewal (1) The holder of an authority may, from time to time, apply for the renewal of the authority. (2) An application for the renewal of an exploration licence or assessment lease must be lodged with the Director-General not earlier than 2 months and not later than 1 month before the licence or lease ceases to have effect. (3) An application for the renewal of a mining lease must be lodged with the Director-General not earlier than 5 years and not later than 1 year (or, if the term of the mining lease is for 1 year or less, not earlier than 2 months and not later than 1 month) before the mining lease ceases to have effect. (4) An application for the renewal of an authority must be accompanied by the appropriate lodgment fee. (5) If an application for the renewal of an authority is in respect of part only of the land subject to the authority, the application must be accompanied by a description, prepared in the manner prescribed by the regulations, of the land over which renewal of the authority is sought. (6) An application for the renewal of an exploration licence may be made in respect of one or more parts (but not more than such number of parts as may be prescribed by the regulations) of the exploration area. (7) An application for the renewal of an assessment lease or a mining lease may be made in respect of the whole, or of any single part, of the assessment area or mining area. (8) To avoid doubt, the holder of an exploration licence may apply for and be granted a renewal of the licence even if the holder is an applicant for or is granted an assessment lease or a mining lease with respect to some or all of the land in the exploration area. 8Section 374 provided: 374 False or misleading information etc A person must not: (a) in or in connection with an application under this Act, or (b) in purported compliance with any requirement under this Act, furnish information that the person knows to be false or misleading in a material particular. Maximum penalty: 100 penalty units. 9Valid pending applications, as in this case, are determined under the Act as amended meaning as in force since 15 November 2010. The consideration of the renewal application under s 114 by the Minister falls under the amended Act now in force. The renewal was granted on 14 March 2011. 10The objects of the Mining Act (as now in force) provide in s 3A: 3A Objects ... to encourage and facilitate the discovery and development of mineral resources in New South Wales, having regard to the need to encourage ecologically sustainable development, and in particular: (a) to recognise and foster the significant social and economic benefits to New South Wales that result from the efficient development of mineral resources, and (b) to provide an integrated framework for the effective regulation of authorisations for prospecting and mining operations, and (c) to provide a framework for compensation to landholders for loss or damage resulting from such operations, and (d) to ensure an appropriate return to the State from mineral resources, and (e) to require the payment of security to provide for the rehabilitation of mine sites, and (f) to ensure effective rehabilitation of disturbed land and water, and (g) to ensure mineral resources are identified and developed in ways that minimise impacts on the environment. 11The Dictionary to the Mining Act provides: authority means an exploration licence, an assessment lease or a mining lease. decision-maker means: (a) in relation to a mineral claim or an opal prospecting licence, or an application for or with respect to such a claim or licence-the Director-General, or (b) in relation to a mineral owner authority, or an application for or with respect to such an authority-the Director-General, or (c) in relation to any other type of authority or an application for or with respect to any other type of authority-the Minister. 12Relevant sections of the amended Mining Act dealing with new exploration licence applications provide: Part 3 Exploration licences Division 1 Applications and tenders 13 Application for exploration licence (1) Any person may apply for an exploration licence. (2) To avoid doubt, the owner of privately owned minerals may apply for an exploration (mineral owner) licence or any other exploration licence with respect to those minerals. Note. The owner of privately owned minerals may choose to apply for an ordinary exploration licence with respect to those minerals, rather than an exploration (mineral owner) licence. In relation to exploration (mineral owner) licences see section 24 (4). (3) An application that relates to land in a mineral allocation area may not be made, except with the Minister's consent, in relation to any group of minerals that includes an allocated mineral. (4) An application for an exploration licence must: (a) specify the group or groups of minerals in respect of which the application is made, and (b) be lodged with the Director-General, and (c) be accompanied by the required information and the application fee prescribed by the regulations, and (d) if the application is for an exploration (mineral owner) licence with respect to privately owned minerals that have more than one owner, be made by all the owners. (5) The required information is as follows: (a) a description, prepared in the approved manner, of the proposed exploration area, (b) particulars of the financial resources and relevant technical advice available to the applicant, (c) particulars of the program of work proposed to be carried out by the applicant in the proposed exploration area, (d) particulars of the estimated amount of money that the applicant proposes to spend on prospecting in that area, (e) if the application is for an exploration (mineral owner) licence, evidence that the minerals to which the application relates are owned by the applicant, (f) any other information that is prescribed by the regulations. (6) If there is more than one applicant for the licence, a reference in subsection (5) to the applicant is a reference to each applicant. Division 3 Granting of exploration licences 22 Power of decision-maker in relation to applications (1) After considering an application for an exploration licence, the decision-maker: (a) may grant to the applicant an exploration licence over all or part of the land over which a licence was sought, or (b) may refuse the application. (2) Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds: (a) that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals, (b) that the decision-maker reasonably considers that the applicant provided false or misleading information in or in connection with the application. (3) The decision-maker may grant a single exploration licence in respect of 2 or more applications or 2 or more exploration licences in respect of a single application. 26 Conditions of exploration licence (1) An exploration licence is subject to such conditions (if any) as the decision-maker imposes when the licence is granted, or at any other time under a power conferred by this Act. (2) Without limiting the generality of subsection (1), the conditions of an exploration licence may include any of the following: (a) a condition requiring the holder of the licence to pay royalty to the Minister on any minerals recovered under the licence (but only if it is not an exploration (mineral owner) licence), (b) a condition with respect to cores and samples obtained in the course of drilling. (3) Part 14 applies to royalty payable under a condition referred to in subsection (2) (a) in the same way as it applies to royalty payable on a mineral recovered under a mining lease. 27 Term of exploration licence An exploration licence: (a) takes effect on the date on which it is granted or on such later date, or on the occurrence of such later event, as the decision-maker may determine, and (b) ceases to have effect on the expiration of: (i) 2 years after the date on which it took effect, in the case of an exploration (mineral owner) licence, or (ii) such period (not exceeding 5 years) as the decision-maker determines, in the case of any other exploration licence. 28 Form of exploration licence An exploration licence is to be in the approved form and is to include the following particulars: (a) a description of the land over which it is granted, (b) a list of the group or groups of minerals in respect of which it is granted, (c) the conditions to which it is subject, (d) the period for which it is to have effect. Division 4 Rights and duties under an exploration licence 29 Rights under exploration licence (1) The holder of an exploration licence may, in accordance with the conditions of the licence, prospect on the land specified in the licence for the group or groups of minerals so specified. (2) If an application for an assessment lease, mining lease or mineral claim made by the holder of an exploration licence is not finally dealt with before the date on which the licence would otherwise cease to have effect, the licence continues to have effect, in relation only to the land to which the application relates, until the application is finally dealt with. (3) Subsection (2) does not operate to extend an exploration licence for more than 2 years, or such further period as the Minister may approve in a particular case, after the date on which it would otherwise expire 13Part 7 deals with the renewal, transfer and cancellation of exploration licences. Division 1 - renewal of authorities, includes s 113 - s 115. Section 113 concerns applications for renewal. 14Section 113 of the Mining Act currently provides: 113 Applications for renewal (1) The holder of an authority may, from time to time, apply for the renewal of the authority. (2) An application for the renewal of an authority must be lodged with the Director-General within the period set out below: (a) in the case of the renewal of an exploration licence or an assessment lease-within the period of 2 months before the licence or lease ceases to have effect, or (b) in the case of the renewal of a mining lease for 1 year or less-within the period of 2 months before the lease ceases to have effect, or (c) in the case of the renewal of a mining lease for more than 1 year-not earlier than 5 years and not later than 1 year before the lease ceases to have effect. (3) An application for renewal must be accompanied by the application fee prescribed by the regulations and any information that is prescribed by the regulations. (4) (Repealed) (5) If an application for the renewal of an authority is in respect of part only of the land subject to the authority, the application must be accompanied by a description, prepared in the manner prescribed by the regulations, of the land over which renewal of the authority is sought. (6) An application for the renewal of an exploration licence may be made in respect of one or more parts (but not more than such number of parts as may be prescribed by the regulations) of the exploration area. (7) An application for the renewal of an assessment lease or a mining lease may be made in respect of the whole, or of any single part, of the assessment area or mining area. (8) To avoid doubt, the holder of an exploration licence may apply for and be granted a renewal of the licence even if the holder is an applicant for or is granted an assessment lease or a mining lease with respect to some or all of the land in the exploration area. 15Section 114 of the Mining Act provides: 114 Power of decision-maker in relation to renewal applications (1) After considering an application for the renewal of an authority, the decision-maker: (a) may renew the authority, or (b) may refuse the application. (2) Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds: (a) that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations or a condition of the authority (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals, (b) that a person has contravened a condition of the authority (whether or not the person has been prosecuted or convicted of any offence arising from the contravention), (c) that the decision-maker reasonably considers that the holder of the authority provided false or misleading information in or in connection with the application or any report provided under this Act for or with respect to the authority. (3) The period for which an authority is renewed may not on any one occasion exceed: (a) 5 years in the case of an exploration licence or assessment lease, or (b) 21 years (or such longer period as the decision-maker may, with the concurrence of the Premier, determine) in the case of a mining lease. (4) On renewing an authority, the decision-maker may amend any of the conditions of the authority and may include further conditions in the authority. (5) The area of land over which an authority is renewed may differ from the area of land over which the renewal of the authority is sought, but not so as to include any land that was not subject to the authority immediately before the renewal. (6) The area of land over which an exploration licence may be renewed is not to exceed half the area over which the licence was in force when the application for renewal was made unless the decision-maker is satisfied that special circumstances exist that justify renewal of the licence over a larger area. (7) The decision-maker may defer dealing with an application for the renewal of a mining lease over any land if the mining lease is the subject of action being taken under Part 6 in connection with the granting of a consolidated mining lease over that land. ... 16Decision-maker is defined to include the Minister in the Dictionary to the Mining Act. 17Section 117 provides: 117 Authority to have effect until application dealt with (1) If an application for the renewal of an authority is not finally dealt with before the date on which the authority would otherwise cease to have effect, the authority continues to have effect, in relation only to the land to which the application relates, until the application is finally disposed of. ... 18Division 3 "Cancellation of authorities" provides in s 125(1): 125 Grounds of cancellation of authority (1) The decision-maker may cancel an authority as to the whole or any part of the land to which it relates: (a) if the holder of the authority requests the decision-maker to cancel the authority, or (b) if the holder of the authority contravenes a provision of this Act or the regulations (whether or not the holder is prosecuted or convicted of any offence arising from the contravention), or (b1) if a person contravenes a condition of the authority (whether or not the person is prosecuted or convicted of any offence arising from the contravention), or (b2) if the decision-maker reasonably considers that the holder of the authority provided false or misleading information in or in connection with an application or any report provided under this Act for or with respect to the authority, or (c) if the holder of the authority fails to comply with the requirements of any agreement or assessment under Part 13 in relation to the payment of compensation, or (d) if the holder of the authority is convicted of any offence relating to mining or minerals, or (e) if the land is required for a public purpose, or (f) if the holder of the authority fails to use the land comprised in the authority in good faith for the purposes for which the authority has been granted, or uses the land for a purpose other than that for which the authority has been granted. 19Part 8 Div 1 "General procedures" includes s 135 "Waiver of minor procedural matters" provides: 135 Waiver of minor procedural matters (1) The decision-maker may grant or renew an authority even though the applicant has failed to comply with a requirement of this Act or the regulations: (a) as to the time within which anything is required to be done, or (b) as to the details to be contained in any notice served, lodged or caused to be published by the applicant, or (c) as to the information to accompany any application, or (d) as to the furnishing of declarations and other information by the applicant. (2) This section does not authorise the decision-maker to grant or renew an authority in the case of an applicant who has failed to comply with such a requirement unless the decision-maker is satisfied that the failure is unlikely: (a) to adversely affect any person's rights under this Act or the regulations, or (b) to result in any person being deprived of information necessary for the effective exercise of those rights.

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Evidence 20Four volumes of material were tendered by the parties. Volumes 1 and 2 are the Minister's file as discovered being file no T90/0302. These volumes also included parts of Mr Nesbitt's expert report, a surveyor called by Newcrest. Volume 3 contains additional documents discovered by the Minister and by Newcrest. A supplementary tender bundle contained documents produced by Gold and Copper. 21Documents in volume 1 (of exhibit A) relied on include the record of who has taken the file out of storage including the Exploration Titles Committee on 10 July 2009 and Mr New on 15 March 2011. 22The appropriate instrument of delegation by the Minister of decisions under s 114 of the Mining Act to Team Leader Western (Mr New) was tendered.

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Agreed Chronology 23On 21 May 1991 EL 3856 was granted to Newcrest over 54 units until 20 May 1993. On 7 June 1993 EL 3856 was renewed over 54 units until 20 May 1995. On 5 October 1996 mining lease (ML) 1405 was granted to Cadia Holdings Pty Limited. On 8 October 1997 EL 3856 was renewed over 49 units until 20 May 1998. Canberra 1284 unit z was not renewed. On 19 October 1998 EL 3856 was renewed over 49 units until 20 May 2000. On 1 June 1999 ML 1449 was granted to Cadia Holdings Pty Ltd. 24On 23 June 2000, ML 1472 was granted to Cadia Holdings Pty Ltd and on 8 March 2001 ML 1481 was granted to Cadia Holdings Pty Ltd. On 19 March 2001 EL 3856 was renewed over 43 units until 20 May 2002. On 4 February 2005 EL 3856 was renewed (the sixth renewal) over 43 units until May 2009. It was approved by Mr New as the Minister's delegate. The term of the renewal was until 20 May 2009. The exploration area does not include units j and z and has a similar exclusion h as the purported seventh renewal. 25On 24 March 2009, Newcrest lodged an application for the renewal of EL 3856, comprising a Form 9, a special circumstances submission and renewal fees. The application sought renewal of 43 units for two years. The Form 9 certifies that "all of the particulars required to accompany the application have been supplied and are correct". Mr Kitto prepared the special circumstances submission in March 2009 recommending renewal for two years. It states that Newcrest will at least meet the minimum expenditure requirements and included a reference to Newcrest using the GoviEx system as part of the work proposed. A renewal of exploration licence check sheet contains Mr New's initial as having checked the dealing. 26On 27 March 2009, Colin Moorhead of Newcrest sent a letter to Gold and Copper Resources stating that Newcrest would not be pursuing the use of the GoviEx system with Gold and Copper Resources. A Title Dealing Enquiry was received by the Department on this date. It stated that expiry date of the EL 3856 was 20 May 2009 and the sought expiry date was 20 May 2011. 27On 20 May 2009 EL 3856 was due to expire. On this date Lisa Bowyer of Newcrest emailed the amended page 1 of the Form 9 which sought renewal for five years to Kevin Capnerhurst of the Department. 28On 25 May 2009 Lisa Bowyer of Newcrest emailed "the amended renewal submission" including details of a proposed exploration program for five years to Kevin Capnerhurst of the Department. This submission contained a reference to Newcrest using the GoviEx system as part of the work proposed, It also documents recent exploration that had been conducted, expenditure and future expenditure. 29On 2 June 2009, a Department minute paper documented the consideration of Newcrest's application for the renewal of EL 3856. 30On 10 July 2009 a further Department minute paper detailed the Department's recommendation to renew EL 3856 for 60 months. 31On 2 February 2011 the Exploration Titles Committee meeting recommended the renewal of EL 3856 over 43 units for 60 months. 32On 11 February 2011 a letter was written by Ms Wanda Moore, Western Region Titles for the Director General of the Department. It stated that the application for renewal had reached the stage where the licence may be renewed. It also noted that units j and z had been included in the description because of the shift in coordinates as a result of the move from AGD to GDA. 33On 14 March 2011 EL 3856 was purportedly renewed until 20 May 2014 with the conditions signed by a Newcrest representative. The renewal includes exclusion (h), which states that the exploration area embraces 44 units as specified above (with units j and z specified), exclusive of "any other land that was not subject to the licence immediately before this renewal". Conditions of the renewal included subsection 30 which stated that expenditure on operations must be no less than $74 000 per annum. Conditions of the renewal also included condition 31 which stated that the exploration licence holder must satisfactorily complete the work program nominated in the application for this exploration licence or for renewal of the licence. 34On 16 March 2011 Gold and Copper lodged an application for exploration licence designated ELA 4201 by the Department. Gold and Copper sent the Department further correspondence concerning this application on 31 March 2011, alleging that EL 3856 was void or invalid. The Department response to this correspondence was given on 26 May 2011 stating that it considered EL 3856 to be valid and the area applied for in ELA 4201 to be too small for effective exploration. 35On 20 May 2011 the purported renewal of EL 3856 was gazetted.

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Ground 1 - No power to renew licence under s 114(1)(a) of the Mining Act 36The Amended Points of Claim (APOC) state: 12. Newcrest's Renewal Application sought renewal of EL 3856 for a period of two years. Particulars Newcrest had applied for a renewal of the "full area" of its licence for a period of 2 years (Minister's Discovered Document number 60). The "Submission to Accompany Special Circumstances Renewal Application" (Submission) dated March 2009 accompanying the application (Minister's Discovered Document number 62) referred to a two year period (see Preamble and Conclusion) and provided a justification by reference to works which were proposed to be carried out in "Year 1: 2009 - 2010" and "Year 2: 2010-2011". Newcrest's Renewal Application was entered into the Department's title dealing database as a renewal for two years (Minister's Discovered Document number 56). 13. On 20 May 2009, Newcrest sent to the NSW Department of Primary Industries (Department) a first page of Form 9 - Application for Renewal of an Exploration Licence over EL 3856 which sought renewal of EL 3856 for a period of five years, purportedly amending the Renewal Application (Purportedly Amended Renewal Application). 14. On 25 May 2009, Newcrest sent to the Department a further "Submission to Accompany Special Circumstances Renewal Application" (Further Submission). 15. The Further Submission had the same content as that of the Submission, save for stating in the Preamble that the renewal was sought for five years, the inclusion of point 3.3 regarding work proposed in years 3 to 5, and the inclusion of points 4.3 to 4.5 regarding proposed expenditure in years 3 to 5. 16. On 14 March 2011, the Minister renewed EL 3856 for a period of 5 years, until 20 May 2014. 17. There is no power under the Mining Act 1992 under which the Minister or his delegates may accept a varied or amended application for renewal of an exploration licence. 18. The Renewal Application was not varied by the Purportedly Amended Renewal Application. (conceded by Minister and Newcrest) 19. The Purportedly Amended Renewal Application was not a renewal application under s 113 of the Mining Act 1992. 20. The only renewal application provided to the Department was the Renewal Application. 21. The Minister had no power under s 114(1)(a) of the Mining Act to renew an exploration licence for a period longer than the period in respect of which the renewal was sought. 22. In the premises, the Renewal is invalid. 37It was conceded by the Respondents during the hearing that no power exists for the Minister or his delegate to accept amendments to an application for renewal made out of time. This meant that Gold and Copper did not press all its arguments.

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Gold and Copper's submissions 38Gold and Copper submitted that s 114(1) does not confer on the Minister power to renew an exploration licence for a period longer than the period for which the holder of the licence has applied for four main reasons. It would sit ill with the legislative intention expressed in s 114(5) limiting the Minister's power concerning the geographic scope of the application to imply a power to expand the temporal scope stated in an application. The purpose of the Act, to facilitate in the public interest the exploration and exploitation of the State's mineral wealth, is not given effect by granting exclusive exploration rights beyond those applied for. 39The carefully nuanced legislative scheme demonstrated by the strict time regime for renewal applications of an exploration licence (as in s 113(2)) and the various time limits for the renewal of mining leases, which depend on the period for which the renewal is sought, would be detracted from by construing s 114(1) as empowering the Minister to renew an exploration licence for a period longer than the period for which the holder of the licence has applied. This would also collide with the principles enunciated in Anthony Hordern and Sons Limited v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 (as to which see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at [59] and Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 at [31]; many of those passages were reproduced in Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council [2011] NSWLEC 52; (2011) 184 LGERA 1 at [85]-[92]. 40In response to the Minister's assertion that all that needs to be done is to apply for an authority and the Minister will determine the time period regardless of the application Gold and Copper submitted, firstly, that it has not been the usual practice of the Minister to grant renewals for a longer period than that applied for. Secondly, it is unlikely that the legislation gives the Minister a free-ranging power to grant a renewal for more time than that applied for because it would involve expenditure beyond that anticipated by the renewal application.

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Minister's submissions 41The Minister (adopted by Newcrest) submitted that Gold and Copper's submission is untenable because, firstly, s 114(1) neither expressly nor by inference prevents renewal beyond that stated in the renewal application. Further, s 114(1) does not restrict the decision-maker to considering the application alone, it only limits the exercise of discretion in s 114(4) and s 114(6) with no restriction on the period of renewal except for that provided in s 114(3). Also, s 113(2) does not identify what is to be contained in a renewal application. Secondly, s 114(1) is not speaking of the terms of renewal but rather the fact of renewal or refusal. In response to submissions made by Gold and Copper, the Minister submitted that the differing time periods set out for mining leases in the legislation are specified in order to deal with those particular practical circumstances. 42Section 114 should be read as enabling the decision-maker to grant renewal for up to five years regardless of whether or not that time period is stated in the renewal application. The Minister further submitted that where a renewal applicant is invited to provide information to justify a longer renewal than that stipulated in an application, this should not be seen as an amendment to the renewal application.

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Newcrest's submissions 43Newcrest submitted that the distinction made in s 114 between an "application" and an "authority" is deliberate so that the decision-maker can renew an authority without acceding to every aspect of the application. This submission was supported in oral argument by contrasting it to the language used in s 121 and s 163(6B) which only employ "application". Further, Newcrest submitted that if the decision-maker's power were restricted to that provided in the application, it would also limit the ability of the decision-maker to grant a renewal for a term less than that sought in the application. The only limit on the power to renew with regards to time is in s 114(3). This is so especially considering that there may be good reasons why a decision-maker may wish to grant a renewal longer than that sought in the application. 44Gold and Copper's construction of s 114(1)(a) would require the reading in of words such as "for such a period as is equal to or less than was sought in the application". Newcrest therefore submitted that this would be an impermissible exercise because it would take the statute away from its ordinary and natural meaning.

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Power to renew licence for five years under s 114(1) 45This ground of review requires the construction of the relevant provisions of the Mining Act as in force respectively in 2009 and 2011 to determine the scope of the Minister's power to renew an authority, here an exploration licence. The question is one of statutory construction alone. The Mining Act as in force in 2009 is applicable to the application for renewal whilst the Mining Act in force in 2011 applied to the decision to renew. 46For completeness I note that an application for renewal for two years was made in February 2009, within the timeframe specified in s 113 of the unamended Mining Act (APOC par 12), and purported to be amended in May 2009 to seek a period of five years (APOC par 13, 14, 15). The Respondents conceded that the purported renewal application for five years did not vary the renewal application for two years (APOC 18, 19). Gold and Copper's allegation that there is no power to accept a varied or amended application for renewal of an exploration licence outside the time specified in the unamended Mining Act (APOC 17 as expanded in oral submissions) while not formally conceded by the Respondents can be accepted for these proceedings. It is not therefore necessary to consider the matters raised in APOC par 19 in relation to the purportedly amended renewal application. That only the renewal application for two years was provided to the Department (APOC par 20) is accepted for these proceedings. 47Departmental officers considered that a written application reflecting the period of five years intended to be recommended to the Minister for approval was required as they requested Newcrest to amend the application made in February 2009 for two years to seek five years in May 2009. A Newcrest employee altered the period of renewal on the front page of the same application form and provided an amended special circumstances submission prepared by Mr Kitto which added intended expenditure information for years three to five in late May 2009. The principal geologist's recommendation of approval on 6 July 2009 of 24 months was changed to 60 months. 48General principles of statutory construction should inform my approach. As I held in Hurstville City Council v Minister for Planning and Infrastructure [2012] NSWLEC 134, s 33 of the Interpretation Act 1987 requires a construction which promotes the purpose or object of an Act over one which would not. Guidance on applying this approach was provided by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381-382. Their Honours stated that the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute", that a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals" and that "a court construing a statutory provision must strive to give meaning to every word of the provision". Brennan CJ and McHugh J in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 also referred to the necessity of applying a construction of a statute consistent with its purpose. Where words are plain and unambiguous they should be given their ordinary and grammatical meaning, per Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 305. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] the joint judgment (Hayne, Heydon, Crennan and Kiefel JJ) confirmed that statutory construction commences with a consideration of the language of the text, which may require consideration of the context, including the general purpose of the provision and the mischief it seeks to remedy. In Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704 at [12] Allsop P stated that in construing an Act the legal and historical context must be considered at the outset. At [13] his Honour emphasised the principles in Project Blue Sky. 49Section 113(2) as in force in 2009 specified the timeframe within which a renewal application must be applied for and this was met by Newcrest. The power of the Minister to renew an exploration licence is enabled by s 114(1) in the amended Mining Act whereby an authority may be renewed after consideration of an application. Specific limits imposed on the power to renew the licence are identified in s 114(3)(a) (period of time) and subsection (6) (area of land subject of renewal). Subsection (4) enables the amendment of any of the conditions of the authority and the inclusion of further conditions in the authority. Gold and Copper submitted that there is an implied limit, it not being express, that the time limit sought in an application for renewal cannot be exceeded in any approval of that renewal. If there is such a limit it must be inferred from the statutory scheme in the amended Mining Act as in operation in March 2011 when approval was given. 50Gold and Copper urged consideration of the whole of the Mining Act as applied to exploration licences, including the provisions relating to an application for a new exploration licence, as well as the renewal regime. It submitted that the strict regime for applications for new exploration licences and for renewals supports its construction. The provisions relating to applications for new exploration licences, s 13, s 22, and s 26 - 29 in the amended Mining Act, are set out above. Sections 13(4) and (5) specify what matters must be contained in an application, and is similar to the previous s 13 in force in 2009. Section 22(1) states that after considering an application a decision-maker may grant an exploration licence over all or part of the land for which a licence is sought or refuse the application. The power to impose conditions on the exploration licence is specified in s 26. Terms of an exploration licence are specified in s 27 as two years after the date it takes effect under subsection (a) for an exploration (mineral owner) licence or a term not exceeding five years for any other exploration licence. Section 28 requires an approved form to be used for an exploration licence which must include specified matters. The holder of an exploration licence has the rights specified in s 29. There is similarity to the regime in s 114 for the renewal of an exploration licence with the requirements for an application for a new exploration licence in s 22. The maximum term of both is also limited. Those similarities alone do not assist in resolving the construction argument made by Gold and Copper. 51Anthony Hordern was relied on by Gold and Copper to support the submission that the strict time regime for exploration licences and mining leases set out in the Mining Act indicates against s 114(1) conferring on the Minister power to grant a renewal for a time period longer than that applied for. Sheahan J in Conquest Constructions at [85]-[91] sets out relevant extracts from the judgments in Anthony Hordern and Nystrom, where the High Court considered Anthony Hordern. The often cited passage from Anthony Hordern (at 7) is quoted at [87]: When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power. 52Sheahan J in Conquest Constructions at [86] quotes a summary of Anthony Hordern by Gummow and Hayne JJ in Nystrom at [55]: Anthony Hordern concerned the Commonwealth Conciliation and Arbitration Act 1904 (Cth) (the Conciliation and Arbitration Act) which apparently contained two powers for the making of an award with respect to union preferences. Section 40 empowered the Court of Conciliation and Arbitration by award to give preferential employment to members of unions over other persons, subject to certain conditions, including that such an award was to be made only "other things being equal". The power in s 40 was not expressly confined to the situation where there was an industrial dispute about preference. However a judge of the Court, acting under the general powers in ss 24(2) and 38(a) to hear and determine industrial disputes, made an order unconditionally requiring certain employers to give preference to union members in employing female workers. This Court by majority (Gavan Duffy CJ and Dixon J, McTiernan J, Starke and Evatt JJ dissenting) held that those general powers did not authorise the judge to make an award which "ignored the exception[s]" contained in s 40.McTiernan J concluded as follows: "Reading the Act as a whole, there does not appear to me to be any reason for holding that Parliament intended to give to the Court two powers, entirely different in scope, to order 'preference.' I do not think that the Legislature intended that, in a case in which preference was in dispute, the Court should be free to make any award it deemed fit and that the award might be entirely unconditional, whereas, in a case in which preference was not in dispute, the Court should be fettered and its award moulded by the provisions of s 40." This is a rather more compendious expression of what was said by Gavan Duffy CJ and Dixon J in the passage set out earlier in these reasons. As a matter of construction (and not as one of implied repeal) there was only one power which could be relied upon to make awards giving preferential employment to union members. 53In Nystrom at [59], Gummow and Hayne JJ observed that: Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the "same power", or are with respect to the same subject-matter, or whether the general power encroaches upon the subject-matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions. 54In Nystrom the High Court unanimously, in three separate judgments Gleeson CJ, Gummow and Hayne JJ, Heydon and Crennan JJ held that two sources of power existed in the Migration Act 1958 (Cth) so that the application of one such power could result in an order resulting in deportation. The two separate sources of power were not repugnant to the principles in Anthony Hordern and did not produce irreconcilable legal rights or obligations. 55In Conquest Constructions the Court was considering the power of a local council to make provision for public land. There was express power to reserve land for public purposes in a local environmental plan through the provision of owner-initiated acquisition of land reserved for public purposes in the Environmental Planning and Assessment Act 1979 (EPA Act). The EPA Act also provided a broad power for the making of a development control plan (DCP) which achieved the purpose of an environmental planning instrument (EPI). A DCP could not operate to the extent it was the same as an EPI applying to the same land or inconsistent with an EPI. A DCP provided for a public laneway to be created, which was the provision challenged. Sheahan J held that the DCP provision was valid. 56The characterisation of the provisions of the amended s 114(1) and (3) by Gold and Copper does not reflect the provisions concerning two statutory sources of power which Anthony Hordern and subsequent cases such as Nystrom and Australian Education Union addressed. Section 114(1) requires that an application be considered by a decision-maker before renewing an authority (here a renewal of an exploration licence). The power to issue the authority resides solely in subsection (1). Subsection (3) is a limit on the exercise of the power in subsection (1). There is no other source of power to consider. The inferred limit on the power in subsection (1) by virtue of a period of time specified in an application contended for by Gold and Copper bears no relation to the types of statutory powers considered in Anthony Hordern or Nystrom. The statutory regime in Anthony Hordern provided two separate powers for the making of an award, one a special power to make an award on a particular basis, the issue arising of whether the general power to make awards could exercise the special power. A majority of the High Court (Gavan Duffy CJ, Dixon and McTiernan JJ) holding there was only one power to make a special award and the general power could not be so used. Gummow and Hayne JJ in Nystrom at [59] identify the principle of construction arising from Anthony Hordern as determining whether a statute confers only one power to take action so that a separate general power is confined by the former. 57Turning to other matters relevant to construction, s 114(1) states that the decision-maker can make a decision after considering an application for renewal. Section 113 as in force in 2009 provided for an application for an exploration licence. Payment of a lodgment fee was required (subsection 4). If an application was made in relation to part of land the subject of an exploration licence, subsection 5 applied but this did not arise in this case. No other specific requirement was identified by the parties in the unamended Mining Act or the Mining Regulation 2003 then in force. The Minister submitted that the Form 9 application for renewal of an exploration licence was a form approved by the Minister but was not approved pursuant to a particular statutory provision. This is important to understand as part of the legislative scheme given Gold and Copper's focus on the time constraints for the making of both a new exploration licence and the renewal of an existing exploration licence. The overall statutory scheme does not support Gold and Copper's submissions. Provided an application for renewal is for less than five years, the limit imposed in s 114(3)(a), the Minister can grant the renewal for a period more or less than that sought as long as no more than five years is granted. This construction does not undermine the object of the Mining Act to ensure the efficient development of mineral resources inter alia. 58As the Respondents submitted, if Gold and Copper is correct the converse argument must hold good that the Minister could not grant a renewal for a lesser period than that sought. To state that suggests that the legislative intention could not be that the Minister's discretion is subject to an implied limit confined by the precise period of renewal sought in an application. 59The Respondents' construction is more reflective of the actual text of s 114(1), (3), (4) and (6). Subsections (3) and (6) provide the only express limits on the renewal power of the Minister. The Respondents' approach is inherently more in keeping with the ordinary and natural meaning of the words in the section per Cooper Brookes at 305 and Alcan at [47]. In that regard I accept Newcrest's submission that the distinction between "application" and "authority" in s 114 supports a conclusion that the decision-maker can renew an authority that does not reflect every aspect of an application. The Respondents' construction does not require additional words to be implied in the section. Gold and Copper's construction requires additional words to be inferred, which is generally impermissible when construing legislation 60D C Pearce and R S Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis at [2.22] to [2.23] cite McHugh JA in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 as stating that only if certain conditions are adhered to could the "reading in" of missing words be a legitimate use of the purposive approach. These conditions, at 423, are "first, the court must know the mischief with which the Act is dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect." These conditions are not met in the present case as no mischief or inadvertence is identified and there is no identified omission by Parliament. To the extent that a purposive approach can assist in construction, the objects of the Mining Act are served by my approach to construction of s 114. 61There is no evidence to support Gold and Copper's submission that the Minister's practice is not to do what it has done in this case, one difficulty with accepting that submission. I otherwise agree with the Respondents' submission that the practice of Newcrest and the Minister of granting a renewal for a period longer than that sought in the application, if any, is irrelevant to a matter of statutory construction. 62Gold and Copper has not established this ground of judicial review.

[11]

Ground 2 - Non-compliance with s 114(6) Mining Act (no satisfaction of special circumstances) 63The APOC state: 23. The area over which the renewal was made substantially exceeded half the area over which EL 3856 had extended in the period from 21 May 2004 to 20 May 2009 (inclusive). 24. The Minister had no power to grant the renewal over the land over which it was sought unless first he was satisfied that special circumstances existed that justified the renewal of the licence over the area sought. 25. The Minister was not in fact satisfied that special circumstances existed that justified the renewal of the licence over the area sought. Particulars There is no document in the material discovered by the Minister pursuant to orders of this Court (Minister's Discovered Documents) asking the Minister to turn his mind to the question of whether special circumstances existed justifying a renewal for a term of 5 years. 27. Alternatively, if in fact the Minister was satisfied that special circumstances existed that justified the renewal of the licence over the whole area sought for a further three years until 2014, there was no probative evidence before the Minister at that time sufficient to enable him to be so satisfied. Particulars The Further Submission provided a justification by reference to works which were proposed to be carried out in "Year 1: 2009- 2010" and "Year 2: 2010- 2011" and referred to works to be carried out in years three to five, but did not provide a probative basis for a determination that special circumstances existed so as to justify the renewal of the exploration licence for those years over the whole area sought.

[12]

Gold and Copper's submissions 64Gold and Copper submitted that the Minister's delegate was not satisfied that "special circumstances exist that justify the renewal of the licence" over more than half of the area for five years over which the exploration licence had existed. Therefore this precondition to the exercise of power in s 114(6) was not satisfied, relying on Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 2) [2010] NSWLEC 1; (2010) 172 LGERA 25 at [59] per Preston J, affirmed by Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral [2010] NSWCA 353; (2010) 178 LGERA 411. The Minister's delegate only had documents relating to renewal for two years before him and there was no evidence adduced by the Minister about what was considered by his or her delegate. 65There is no evidence that the Minister's delegate was satisfied that special circumstances existed. There was no briefing paper before the Minister's delegate, unlike in Caroona. There was no document in the Department's file in 2011 to indicate the Minister's delegate could have formed the requisite state of satisfaction at that time. The only document that could have assisted in reaching the required state of mind is an Exploration Titles Committee Meeting minute which meeting Mr New did not attend but he had the minute before him. Gold and Copper further submitted that since this was the seventh purported renewal there is even less reason for there to have been special circumstances. 66There is no evidence to support a finding that Mr New had before him the two year or five year special circumstances applications. The fact that Mr Capnerhurst in the minute dated 2 June 2009 summarised the Kitto report and stated that $4,144,788 was spent during the previous five year term does not assist. There is no evidence that the five year application and the amended Kitto report were before Mr New as that was not discovered on the principal file (T90/0302). 67In the alternative, if the Minister's delegate was satisfied that special circumstances existed for the renewal, that opinion was not based on a proper probative basis and is therefore invalid. Gold and Copper relied on the absence of any document in 2011 signed by the Minister's delegate to indicate that he reached the required state of satisfaction before the ultimate decision was made. Gold and Copper also submitted that "special circumstances" requires something to distinguish an application from others. What constituted "special circumstances" turns on the particular legislative context. The four matters that could have been considered by the Minister's delegate as indicated by the Minister's file did not satisfy special circumstances. These matters included planned future deep drilling, expenditure, compliance with conditions, and the use of the GoviEx system if commercially available. Future deep drilling did not constitute "special circumstances" because there was no drilling planned for the first year and for the second year drilling was proposed for much less than half of EL 3856. Expenditure, compliance with conditions and the possible use of the GoviEx system were not special circumstances because they did not take the application out of the ordinary. Gold and Copper therefore argued that the material before Mr New was incapable of constituting "special circumstances" on the proper construction of s 114(6), relying on the principles stated by Dixon J in Avon Downs Pty Limited v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.

[13]

Minister's submissions 68The Minister submitted that the Minister's delegate was satisfied that special circumstances existed because he made the decision to renew the licence over the entire area. Firstly, the appropriate question is whether Gold and Copper can establish on the balance of probabilities that the Minister's delegate had not turned his mind to the provisions of s 114(6) relying on Tobias JA in Caroona (at [57], [65] and [66]), and it cannot. Secondly, the words "special circumstances" are ordinary words not defined in the legislation. Their existence is a question of fact, the context of which is not only statutory but includes day to day decision making in respect of mining. Thirdly, it is for the decision-maker to determine what is relevant and irrelevant to assess whether there are special circumstances and the weight to be given to those considerations (Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24). 69Fourthly, the evidence reveals (as recounted in the Minister's written submissions par 57) that the decision was made with up to date information and opinions available to the Minister's delegate, and involved an assessment of whether there were special circumstances. Fifthly, there is no evidence that the decision-maker misinterpreted the legislation. Sixthly, the alternative argument proposed by Gold and Copper is without foundation. The absence of probative evidence is not the appropriate test. The test is whether the opinion as to the state of satisfaction was not one that could be formed on the basis of the material by a rational person (Minister for Immigration and Citizenship v SZMDS [2010] HCA 15; (2010) 240 CLR 611 at [130]-[131] per Crennan and Bell JJ, Heydon J agreeing with own reasons, Gummow and Kiefel JJ dissenting).

[14]

Newcrest's submissions 70The inference Gold and Copper's argument is based upon should not be drawn for three main reasons. The inference is that there is no document in the discovered material requiring the Minister's delegate to turn his mind to whether special circumstances existed. 71Firstly, the facts asserted in the particulars (at APOC par 25, that is, no document) have not been proved. Secondly, Gold and Copper posited the wrong enquiry because the question concerning the existence of special circumstances relates to the exploration area and not the term of the renewal as supported by the wording in s 114(6) (I note that this is incorrect: see APOC par 25). Thirdly, there is positive evidence that the Minister's delegate was satisfied that special circumstances existed. 72The alternative submission made by Gold and Copper is not a ground of judicial review. The appropriate ground is the no evidence ground, which cannot be made out by showing inadequate or insufficient evidence: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356-357 and see the discussion in Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action, 4th edition (2009) Thomson Reuters at [4.370]-[4.380]. It cannot be argued that there was no evidence on which the Minister's delegate could have formed the opinion that special circumstances existed as outlined in par 69 of Newcrest's written submissions.

[15]

No satisfaction of special circumstances under s 114(6) established 73Section 114(6) provides that an exploration licence may be renewed over up to half the area covered by a licence. A renewal of an exploration licence over the whole area is not permitted unless the delegate is satisfied that special circumstances exist justifying the larger number of units by virtue of the second part of s 114(6). Gold and Copper bears the onus of proof of establishing its case to the civil standard. 74The evidence includes the principal departmental file T90/0302 held by the Mineral Titles branch of the Department (copied in volumes 1 and 2 of the agreed bundle of documents). The file does not contain all the documents relevant to the renewal of the authority for five years rather than two years. Volume 3 of the agreed bundle includes additional documents discovered by the Minister's department (and a few documents from Newcrest). In particular the amended Kitto report was not on the file. I note that the amended front page of the application (Form 9) sent in May 2009 by Newcrest is on the file. Gold and Copper asks the Court to infer that this material was not considered by Mr New as it was not contained on the file in the absence of any evidence from the Minister's delegate suggesting that it had been considered by him in February 2011 when the renewal was approved. This was submitted to be relevant in light of the change in work program then undertaken by Newcrest according to the confidential documents produced by it. 75The documentation on the departmental files in early 2011 is limited. On file T90/0302, working backwards by date, the Instrument of renewal of EL 3856 was signed by Mr New, Team Leader Western Region, as delegate of the Minister commencing from 14 March 2011. Newcrest signed as accepting the conditions specified in the instrument. A letter dated 11 February 2011 was sent to Newcrest by W T Moore for the Director-General advising that the application for renewal had reached the stage where the licence could be renewed. The letter states that if returned by 4 March 2011, a recommendation will then be made to the Minister to renew the licence. The instrument for renewal was enclosed for execution. The Minutes of the Exploration Titles Committee meeting of 2 February 2011 refer to EL 3856 and state that the application for special circumstances renewal is for 43 units of 43 units previously held. The Committee recommends renewal of 43 units for a period of five years. This is signed by Jedda Hoffman, secretary, and Adrian Delany, chair. 76A document headed "Application for Renewal" for EL 3586 dated 10 July 2009 signed by Mr W McDonald Western Region Titles identifies that the special circumstances policy satisfied ("yes" recorded next to those words). The term sought was 60 months. The geological survey recommendations were that "special circumstance renewal is recommended and supported. The term of renewal should be 60 months based on planned future deep drilling." Mr New as team leader signed the minute on 10 July 2009 stating "SCR 100% for 60 months supported". 77A minute paper signed by Mr Capnerhurst of mineral exploration assessment on 2 June 2009 is headed "Special circumstance renewal for Greater than 50% area EL 3856 by Newcrest Mining Limited". It records the following: Reports received: During the five year term all statutory reports were received and deemed satisfactory. Expenditure commitment for last term :$ 73,000 / annum Actual expenditure: Expenditure on this group of licences totaled $4,144,788 during the five year term. Exploration conducted: Exploration consisted of a deep drilling campaign aimed at finding additional resources for the Cadia Valley Operations. This was satisfactory and coverage of the area was satisfactory. Proposed program: Newcrest are planning to drill test a number of known prospects as well as use the Govi-Ex IP system if it is commercially available. This is satisfactory and coverage of the area for renewal is satisfactory. This licence surrounds the current Cadia Valley Operations and is the original licence that Cadia was discovered on. Newcrest continue to explore for additional resources to supplement those already being mined at Cadia. Special circumstance renewal is recommended for five years as Newcrest have met the reporting requirements and greatly exceeded the expenditure commitment. Effective exploration has been undertaken and further drilling is being planned in the next five years. CONCLUSIONS Special Circumstance Renewal policy criteria are satisfied. RECOMMENDATIONS Special Circumstance Renewal is recommended. The period of renewal should be 60 months. 78The principal geologist noted on 6 July 2009 in a minute paper that "recommendation supported. SCR renewal pf 43 units for 24 months". 79A renewal of exploration licences check sheet for EL 3856 was signed as a deal checked by Mr New on 27 March 2009. Receipt of the renewal application on 27 March 2009 was recorded on the check sheet. The application was supported by a submission to accompany the special circumstances renewal application for EL 3856 which addressed the renewal application for two years on the basis that Newcrest had greatly exceeded minimum expenditure covenants and satisfactorily met reporting requirements, continued to carry out comprehensive licence-wide exploration and had ongoing major exploration, feasibility and mining programs in place and was budgeting for the continuation of these programs through the 2009-2010 financial year and subsequent years. 80Documents concerning the amendment of the application to seek renewal for five years rather than two are copied in volume 3 of the tender bundle. These were discovered by the Minister from other files in the Department held by the Geological Survey Unit and the Exploration Titles Committee, according to an affidavit by Mr McDonald departmental officer dated 25 November 2011 sworn in the course of the proceedings in relation to an application for verified discovery by Gold and Copper. These documents were attached to that affidavit. An amended page 1 of the application showing the period of renewal sought as five years was sent by Newcrest to Mr Capnerhurst, a departmental officer on 20 May 2009. An amended special circumstances submission including expenditure data for three to five years by Mr Kitto was sent by Newcrest on 25 May 2009. Departmental officer Mr Capnerhurst recommended a five year renewal in the minute paper to the Titles Branch for 60 months. The same minute from Mr Capnerhurst with the principal geologist approving 24 months is contained in volume 1 (p 99). The volume 3 version has the figure 24 months crossed out and 60 months inserted where the principal geologist's signature appears for the same date, 6 July 2009. 81A table produced by the Minister concerning the renewal, which is undated but can be inferred from its location in the bundle as created in 2009, states that Geosurvey, Coal advice/Petroleum stated that "grant 43 with SCR supported. Surrounds Cadia Valley Operations - consider 5 year renewal reasonable request" The Environment Branch stated that there were no issues and no objections. The Titles Branch stated to "renew for 5 years: Cadia Valley operations are the biggest gold producer in Australia." Given where the document is located in the bundle I can infer it was likely to have been produced in June 2009. A screenshot of the workflow database download on 2 June 2009 shows a comment made by Mr Capnerhurst that "the only worry is the proposal to use super IP." Another screenshot of the workflow database download on 6 July 2009 shows a comment made by Mr Wood that he "agrees with assessment comments - recommendation supported on the basis of recent performance." 82Contrary to Gold and Copper's submission, there is no basis for finding that the documents produced by the Minister and contained in volume 3 were not from the departmental files, given Mr McDonald's evidence referred to above in par 80. What Gold and Copper puts in issue is whether this material was before Mr New at all at the time he made his decision as the Minister's delegate, given there is no evidence of what documents he considered. He is recorded on the index for file T09/0302 as dealing with the file on 15 March 2011 the day after the he signed the renewal. 83It is necessary to consider this evidence in light of the legal principles relied on by the parties. Gold and Copper emphasised the principle in Caroona (No 2) at [59] per Preston J that: The existence of the Minister's mental state of satisfaction under s 114(6) of the Mining Act that special circumstances exist that justify the renewal of the licence over a larger number of units, is a precondition or an essential preliminary to the exercise of the power to renew an authority over a number of units exceeding half the number of units over which the licence was in force when the application for the renewal was made. Unless the Minister forms that mental state of satisfaction, the prohibition on renewal of the exploration licence over a number of units in excess of half the number of units over which the licence was in force when the application for renewal was made, remains... 84This approach was affirmed on appeal. Gold and Copper argued that an evidentiary vacuum exists here, in contrast to Caroona, so that no inference of satisfaction by the Minister's delegate that special circumstances existed in early 2011 can arise. Caroona concerned a decision by the Minister rather than the Minister's delegate and a written ministerial briefing was provided to the Minister which set out the relevant facts. Preston J held that there was no basis for concluding that there was a failure on the Minister's part to reach the requisite state of satisfaction (at [61] - [63]). The evidentiary vacuum here, Gold and Copper contended, includes the lack of any document bearing Mr New's signature other than the ultimate decision within a timeframe relevant to that decision in February 2011. 85Mr New did not provide reasons for his decision to approve the renewal and he is not required to. Gold and Copper relied on principles stated by Dixon J in Avon Downs at 360 (applied by a unanimous High Court in WR Carpenter Holdings Pty Limited v Commissioner of Taxation of the Commonwealth of Australia [2008] HCA 33; (2008) 237 CLR 198 at [10]), emphasis added by Gold and Copper: [The Federal Commissioner of Taxation's] decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law. (emphasis added) 86Gold and Copper submitted that given the extensive disputes about the need for verified discovery culminating in notices of motion before the Court and an order to that effect, as detailed in documents in exhibit C, there can be no criticism of its case based on the absence of a request for interrogatories or an application for reasons from the Minister as provided for in the relevant Court rules. The Respondents relied on Caroona in the Court of Appeal to argue that Gold and Copper bears the onus of proving that the Minister's delegate had not turned his mind to the provisions of s 114(6) and has not discharged that onus. In particular Tobias JA at [69] -[70] stated: ... there he [Preston J] noted the correct question for his determination and acknowledged that the appellant's onus of establishing the relevant negative proposition could be discharged by reference to the documentary material evidencing the decision-making process if that material was sufficient to allow the Court to draw the inference that the Minister did not form the required mental state of satisfaction. However, his Honour was not prepared on ascertaining all the documentary evidence to draw the necessary inference. That was a conclusion based on findings of fact and is thus immune from attack on this appeal. I would also draw attention at this point to the primary judge's observations at [70] of his reasons (see 41 above) that, apart from relying on the documentary evidence, there were other judicial mechanisms that the appellant could have invoked to establish that the Minister did not form the required mental state of satisfaction. For example, interrogatories could have been directed to the Minister with a view to eliciting the relevant evidence or a direction could have been sought under Pt 4 r 4.3 of the Land and Environment Court Rules 2007 (NSW) that the Minister furnish a written statement setting out the Minister's reasons for the decision. However, the appellant did not invoke these mechanisms which, had it done so, may have assisted its case. Accordingly, it was unable to discharge its onus of establishing on what little evidence it had that the Minister did not form the required mental state of satisfaction. 87I do not understand from the observations of Preston J at [69] - [70] at first instance or of Tobias JA at [70] set out above that I must infer there is a gap in Gold and Copper's case if such mechanisms are not availed of, contrary to the Respondents' submission. Such mechanisms exist to potentially assist an applicant's case. In Caroona the absence of such material was considered as part of the Court's assessment of whether there was material on which it could determine that satisfaction was reached by the Minister. In Caroona there was a written ministerial briefing which addressed relevant matters which the Court could weigh up in light of the onus of proof placed on the applicant. 88Gold and Copper is correct to submit there is an evidentiary vacuum in the Ministerial delegate's decision-making process at the relevant time in 2011. In the absence of any document identifying when the exercise of delegation by Mr New occurred, it can be inferred that this was after the Exploration Titles Committee met on 2 February 2011 and after the letter to Newcrest dated 11 February 2011 sending the proposed renewal instrument for signature as that refers to the matter being referred to the Minister with recommendation for approval upon receipt of the signed instrument or on the day the renewal instrument was signed by Mr New as delegate for the Minister, 14 March 2011. There is no evidence of a document before or produced by Mr New adverting to Newcrest's special circumstances in relation to a five year term over the whole area of land at the time of his consideration as delegate of the Minister of the renewal application in early 2011. The documents on file T90/0302 or in volume 3 to which Mr New is a signatory or was privy to otherwise date from 2009. In particular the minute signed by Mr New stating "SCR 100%" was dated 10 July 2009. Before finally resolving this issue it is necessary to consider one argument raised by the Minister.

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Does Carltona principle apply to delegate? 89Mr New held a formal delegation from the Minister of the statutory power to approve exploration licences according to the instrument of delegation in evidence. The Minister submitted that all relevant material did not have to be before Mr New at the time he exercised his delegation. It was sufficient for members of the Department to have had information before them which can then be inferred to have been before Mr New relying on Bushell v Secretary of State for the Environment [1981] AC 75 at 95 per Lord Diplock as quoted in Peko-Wallsend at 66: To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament's intention. Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister's own knowledge, his own expertise. 90Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 from which the Carltona principle is derived was relied on by the Minister. As cited by Mason J in Peko-Wallsend at 38, the principle provides that a Minister can act through an authorised officer of his or her department. The Minister submitted that Bushell and Carltona apply equally in this context to the Minister's delegate. The Minister's delegate should be considered to be in the position of the Minister whereby the skill and knowledge of the Department can be attributed to the delegate. As long as someone in the Department is aware of a relevant matter that satisfies the statutory requirement, here of satisfaction of special circumstances. 91The Carltona principle has been developed in recognition of the necessity of delegation of power by Ministers of the Crown to the officers in their Department. There is no suggestion in any of the authorities relied on by the Minister, including Peko-Wallsend, that the principle applies to the actions of a delegate. In Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, 5th ed (2013) Thomson Reuters, the authors state at [6.140] that the principle is usually applied to powers given to Ministers, or office-holders within the Public Service accountable to Ministers with one exception being the application of the principle to the Commissioner of Taxation in Australian Taxation Office in O'Reilly v the Commissioners of the State Bank of Victoria (1983) 153 CLR 1. I do not consider there is authority to support the Minister's submission that a departmental delegate can be regarded in the same position as a Minister of the Crown for the purposes of applying the Carltona principle. Mr New has not been identified as a statutory officer holder. As a departmental delegate he is likely to hold a delegation precisely because his responsibilities in the department coincide with the subject matter for which a delegation is held. A Court should be reluctant to infer knowledge on the part of a delegate in these circumstances. A departmental officer at Mr New's level is not in the same practical position as a Minister of the Crown, suggesting that the necessity imperative underpinning the application of the principle is removed. The Carltona principle applies to a person in the position of a Minister of the Crown. The principle does not apply to Mr New's actions as a delegate of the Minister. 92Aronson and Groves consider formal delegation at [6.20]-[6.190] and describes the Carltona agency principle at [6.130] and following. The learned authors observe that true delegates must decide for themselves, subject to any limits in their instrument of delegation. Mr New holds a formal delegation from the Minister administering the Mining Act to exercise an important statutory power. Mr New is required to form the requisite satisfaction of special circumstances referred to in s 114(6). 93Consequently, I consider that the obligation to achieve a state of satisfaction falls on Mr New and he is not entitled to rely on knowledge of others in the department as inferentially giving rise to his satisfaction. That means the bare reference that the special circumstances policy was satisfied at the Exploration Titles Committee meeting held in February 2011 is not enough to give rise to an inference that Mr New had discharged his statutory obligation in 2011. The only other evidence in 2011 before the Court is that Mr New accessed file T90/0302 on 15 March 2011, after the renewal had been granted on 14 March 2011. 94Essentially there is no evidence of what Mr New considered at the time he was exercising the Minister's delegation in February/March 2011 and therefore whether in 2011 he achieved the state of satisfaction he was required to achieve by virtue of the delegation he held. There is a gap in the departmental files leaving the Court none the wiser as to what Mr New considered in achieving the requisite state of satisfaction. The fact that Mr New issued the renewal over the whole area is not evidence of satisfaction. Given the significant powers being exercised by him as a delegate of the Minister under the Mining Act with the renewal for the seventh time of a valuable exploration licence, Gold and Copper is able to rely on that vacuum in the decision-making process to discharge its onus of proof as there is no evidence on which I can infer that the requisite state of satisfaction was held by Mr New at the time of the exercise of his delegated power to renew EL 3856. 95That circumstance alone is sufficient to discharge Gold and Copper's onus of proof of establishing this ground of review but is also backed up by the reference to changes in Newcrest's activities from those referred to by Mr Kitto in his May 2009 report. Gold and Copper referred to the planned future work program as disclosed in Newcrest's annual reports for 2009 and 2010, much of which is confidential, to suggest that the future deep drilling program forecast by Newcrest in the May 2009 special circumstances submission prepared by Mr Kitto did not eventuate. This was to support the contention that there was no evidence of Mr New being satisfied in February or March 2011 when the renewal was granted by him of special circumstances to justify renewal over the whole area. 96I will not detail these changes as they are based in large part on confidential reports of Newcrest but Gold and Copper did demonstrate that the work program to be undertaken varied in important respects from that proposed in 2009. Satisfaction by the Minister's delegate of the exercise of statutory power should be based on information relevant to the timeframe for decision-making which was in 2011. Conclusions reached 18 months before the exercise of a delegated power concerning a five year timeframe are not timely, particularly where there were changed intervening circumstances. 97My principal finding remains that it is unknown if Mr New reached the required state of satisfaction in exercising his discretion to issue the renewal of EL 3856 in March 2011. My finding rests on whether there was a discharge of Gold and Copper's onus of proof in these circumstances and is not a back door application of a requirement that Mr New give reasons for his decision. 98As a result of this finding, there is no need to consider Gold and Copper's alternative argument. 99I consider this ground is established by Gold and Copper.

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Ground 3 - False or Misleading information in application 100Gold and Copper submitted that the decision to approve the renewal was invalid because Newcrest included false or misleading information in its application. 29. In its Submission, Newcrest stated that it proposed, in Year 1, to incorporate a GoviEx Super IP survey across the entire prospect area in conjunction with the Applicant to assist in target definition in year 2. Particulars Minister's Discovered Document number 62 at page 6. 30. At the time it made the Submission: (a) the Applicant held the exclusive right to use the GoviEx Super IP survey in the region of the Cadia mine; (b) the Applicant had not granted any right to Newcrest to use the GoviEx Super IP survey; and (c) Newcrest had no right to use the GoviEx Super IP survey. 31. Shortly after making the Renewal Application, and before it was determined, Newcrest ceased negotiations with the Applicant in relation to the GoviEx Super IP survey. Particulars Letters dated 27 April 2009 and 12 May 2009 from Colin Moorhead to Brian Locke. 32. At no time did Newcrest inform the Minister that it no longer proposed to undertake work across the entire prospect area using the GoviEx Super IP survey. 33. Contrary to what was stated in Newcrest's Renewal Application, by no later than 27 April 2009 Newcrest did not propose to conduct exploration activities over the whole of the prospect area using the GoviEx Super IP survey. 34. In the premises, Newcrest became obliged no later than 27 April 2009 to advise the Minister that the information contained in its Submission in support of its Renewal Application was false or misleading. Particulars The obligation is derived from the Mining Act, in particular from s114(2)(c) and s125(1)(b2), and the terms of paragraph 11 of Form 9. 35. Further, in its Further Submission, Newcrest again stated that it proposed, in Year 1, to incorporate a GoviEx Super IP survey across the entire prospect area in conjunction with the Applicant to assist in target definition in year 2. Particulars Further Submission at page 6. 36. At the time that it made the Further Submission, Newcrest had ceased negotiations with the Applicant in relation to the GoviEx Super IP survey. Particulars Letters dated 27 April 2009 and 12 May 2009 from Colin Moorhead to Brian Locke. 37. The statement referred to in paragraph 35 above was false or misleading. 38. Newcrest was under an obligation to provide correct information in support of its Renewal Application. Particulars The obligation is derived from the Mining Act, in particular from s114(2)(c) and s125(1)(b2), and the terms of paragraph 11 of Form 9. 39. By making the Further Submission, Newcrest breached the obligation referred to in the previous paragraph. 40. At the time of making the decision to grant the Renewal, the Minister did not know that, contrary to the statements referred to in paragraphs 29 or 35 above, Newcrest no longer proposed to conduct exploration activities over the whole of the prospect area using the GoviEx Super IP survey. 41. Officers within the Department relied upon the statements referred to in either paragraph 29 or 35 above in recommending that the Renewal be granted. Particulars Minute Paper dated 2 June 2009 recording a recommendation by Kevin Capnerhurst and support for that recommendation by the Principal Geologist on 6 July 2009. 42. In the premises, the Renewal is invalid.

[18]

Evidence 101The renewal application made by Newcrest in March 2009 was supported by a report of Mr Kitto which referred to the work proposed in year one (2009-2010) including the incorporation of the GoviEx system across the entire prospect area in conjunction with Gold and Copper to assist in target definition in year two. This was repeated in the amended May 2009 report prepared to support an application for renewal for five years. Mr Capnerhurst notes in the minute dated 2 June 2009 in relation to the proposed program that Newcrest planned to drill a number of known prospects as well as use the GoviEx system if commercially available. In a work flow data base download by Mr Capnerhurst dated 2 June 2009 he notes that the "only worry is the proposal to use super IP". The next officer who processed the application Mr Colin Wood agreed with the assessment comments stating that the "recommendation [is] supported on the basis of recent performance". Mr McDonald supported the renewal for five years "based on planned future deep drilling". The principal geologist endorsed the renewal on 6 July 2009 agreeing with Mr Capnerhurst's recommendation. 102Gold and Copper tendered a bundle of correspondence between it and Newcrest concerning the use of the GoviEx system by Newcrest (supplementary bundle exhibit B). On 19 January 2009, Mr McMillan of Newcrest sent an email to Mr Holliday and Mr Kitto which stated the success of the GoviEx system and canvasses the possibility of entering into a partnership with Gold and Copper to operate the system in Australia. A confidentiality agreement was executed by Gold and Copper and Newcrest concerning the survey around the area where Gold and Copper was proposing to use the GoviEx system. A letter attached to an email of 10 February 2009, contains an offer for consideration from Gold and Copper to Newcrest concerning the Cadia district tenement holding and their planned development. Gold and Copper offered a unique, amalgamated land position where Gold and Copper has a number of exploration licences in the area, largely surrounding those held by Newcrest leading to a no gaps in the maps approach. Gold and Copper also offered access to its exclusive arrangement with GoviEx system to the super IP survey. 103A chain of emails within Newcrest in February 2009 in which Mr McMillan of Newcrest wrote to Mr Moorehead, the executive general manager minerals for Newcrest stated that Newcrest should discuss the use of the GoviEx system with Gold and Copper. Mr Holliday is one of the people given responsibility for this matter and he wrote to Mr McMillan making general comments about the proposal which point out the advantages and disadvantages of pursuing an arrangement with Gold and Copper. Mr McMillan supported the propositions of Gold and Copper being put to a broader group within Newcrest. Mr Holliday responded stating that more information was needed before he was able to effectively present to Mr Moorehead. Mr Holliday believed that there was no rush in pursuing an arrangement with Gold and Copper. 104Mr McMillan reported the apprehensive attitude of Mr Holliday to Mr Tully from Gold and Copper on 2 March 2009. Mr McMillan emailed Mr Moorehead on 3 March 2009 attempting to make progress towards an arrangement with Gold and Copper. The first version of the special circumstances submission was submitted on 24 March 2009. Mr Moorehead instructed Mr McMillan on 22 April 2009 to "politely kill off any involvement" with Gold and Copper which Mr McMillan does on 24 April 2009 by email to Mr Tully of Gold and Copper. Mr Moorehead also communicated Newcrest's intention not to go forward with Gold and Copper concerning the GoviEx system to Mr Locke, Managing Director of Gold and Copper, on 27 April 2009 which was confirmed by a letter from Mr Moorehead to Mr Locke dated 12 May 2009. On 25 May 2009 Lisa Bowyer of Newcrest emailed the amended renewal submission to the Department. 105A letter from Gold and Copper to Mr Young at the Department stated that the survey was scheduled to take place between April and June 2010. An email of 31 March 2010 from Gold and Copper to the Department which attached a draft safety management plan stated that the use of the Zeus IP system, another name for the GoviEx system, was scheduled to begin after July 2010. On 21 May 2010 Gold and Copper wrote to the Department concerning the renewal of Gold and Copper's exploration licences and stated that Gold and Copper agreed to perform a Super IP survey over each of the areas covered by the exploration licences and that this Super IP Survey activity would be completed by the next expiration date of the exploration licences on 31 January 2012. An email of 26 May 2010 sent by the Department to Gold and Copper concerning the renewal of Gold and Copper's exploration licences stated "as a condition of the renewal of the above exploration licences for a period of 24 months, that your company will agree to complete a GoviEx survey over the areas to be renewed by 31 January 2012..." and "the grant of exploration licences applications 3909 and 3910 to 31 January 2012 for the purposes of the above Super IP program."

[19]

Gold and Copper's submissions 106Gold and Copper firstly submitted that the unamended Mining Act, which applied at the time the application was made, imposed a duty on Newcrest not to provide false or misleading information in support of a renewal application. The validity of the application should be determined under that Act. The unamended Act required certification that an application was "correct" (it is unclear where this obligation arises). The power to cancel an authority if false or misleading information was provided in support of an application exists by virtue of s 22(2)(b) and s 125(1)(b2)) (I note that these provisions are in the amended Mining Act not the unamended Mining Act). A purposive construction supports this proposition because one of the purposes of the Mining Act is the efficient and orderly exploration and exploitation of the State's mineral resources. This aim is facilitated by imposing an obligation on those making applications not to provide false or misleading information. Gold and Copper noted that a misrepresentation must generally be more than innocent to vitiate a decision: Anderson v Minister for Infrastructure, Planning and Natural Resources [2006] NSWLEC 725; (2006) 151 LGERA 229 at [76]-[79] per Biscoe J. 107The false and misleading information provided by Newcrest was material to the success of the renewal application. Its use over the whole of the exploration licence area was the only statement in the application that related to exploration of the whole area. The potential use of the GoviEx system was central to the asserted special circumstances application. The evidence shows that by 3 March 2009 there was no agreement between Newcrest and Gold and Copper to use the GoviEx system. Newcrest had identified that it needed to perform a due diligence on the technology but none was performed. No further steps were taken to reach an agreement with Gold and Copper. The renewal application was lodged on 26 or 27 March 2009 and was misleading in relation to the use of the GoviEx system. The same statement appeared in the May 2009 application by which time Newcrest had broken off negotiations with Gold and Copper and had determined internally that it did not intend to further pursue negotiations with Gold and Copper. 108Gold and Copper argued there are mandatory statutory requirements not to provide false and misleading information. Newcrest breached the duty owed to provide truthful information under the Mining Act because the statements were wrong, Newcrest knew that the facts were wrong and Newcrest was solely able to inform the Minister of the actual facts. Therefore Gold and Copper submitted that the Minister's decision to issue the exploration licence was vitiated.

[20]

Minister's submissions 109There is no evidence that the statements relied on by Gold and Copper had any material influence on the decision-maker's determination, given the comments of Messrs Capnerhurst, Wood and McDonald identified above at par 100. In particular, Mr Capnerhurst expressed a reservation about the use of the system in the departmental file. There is no evidence that the use of the GoviEx system was material to the decision to renew the licence. 110Further, the statements were not made in response to a mandatory legislative requirement so it cannot be the statutory purpose to invalidate the licence if these statements were wrong (relying on Sharples v Minister for Local Government [2008] NSWLEC 328; (2008) 166 LGERA 302 per Biscoe J at [77]). 111No allegations of fraud or bad faith are made by Gold and Copper. This is important because misleading conduct without fraud or bad faith is not enough to vitiate a decision (at [79] per Biscoe J; Sharples at [114]-[115] and SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at 198-206; Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171; (2008) 245 ALR 501 at [33]). Biscoe J in Sharples at [115] held that negligence is not fraud and provides no ground of complaint that the detriment vitiates the decision made: SZDFE at [53]; SZLIX at [33]; Al-Mehdawi v Secretary of State of the Home Department [1990] 1 AC 876 at 898, 902. A wrong consideration of relevant factors does not mean they have not been considered (Broad Henry v Director-General, Department of Environment and Conservation [2007] NSWLEC 722; (2007) 159 LGERA 172 at [124] per Preston J). 112In oral argument, the Minister submitted that judicial review proceedings must be limited to material that was directly or indirectly before the decision-maker. The supplementary tender bundle concerning the GoviEx system and the correspondence between Newcrest and Gold and Copper were not before the decision-maker and are therefore irrelevant and inadmissible. Secondly, an error in fact finding does not vitiate the decision in this statutory context. It is irrelevant whether information provided was false or misleading. Thirdly, the statements relied on by Gold and Copper are representations and not existing facts so they cannot be regarded as false or misleading.

[21]

Newcrest's submissions 113Newcrest submitted that the information was not false and misleading because in March 2009 this was the current intention of Newcrest. The revised report of Mr Kitto in May 2009 clearly outlined that the only changes made were the addition of a brief statement, and expenditure figures for years three to five. Newcrest submitted that misleading and deceptive conduct must be assessed over all the conduct involved (Butcher v Lachlan Elder Realty [2004] HCA 60;(2004) 218 CLR 592 at [39] per Gleeson CJ, Hayne and Heydon JJ). 114Even if the information was false and misleading, it was corrected by Newcrest. Newcrest conveyed to the Department in the period up to 14 March 2011 that it was not going ahead with the use of the GoviEx system. Newcrest lodged its annual report in June 2009 which includes no mention of the GoviEx system. In December 2009 an interim report for EL 3856 in the section "Exploration Progress Report" stated that as at 30 November 2009 there had been no the GoviEx system. There was no reference to GoviEx in the proposed program. In June 2010 when Newcrest lodged the next annual report, the Exploration Work section made no reference to the GoviEx system. In January 2011 Newcrest lodged its interim report which made no reference to the GoviEx system. In doing so, reliance was placed on various confidential documents. 115Separately Gold and Copper made clear to the Department that the GoviEx survey had not occurred and would not occur in the year one period (2009 to 2010). 116In the alternative, Newcrest submitted that if the information was false or misleading in the required sense, the consequence is not to make the decision automatically void. This is reflected in the discretions embodied in s 114(2)(c) to refuse a renewal application and s 125(1)(b2) to cancel a renewal if false or misleading information has been provided. In oral argument Newcrest relied on Sharples and Moorebank Recyclers Pty Limited v Liverpool City Council [2009] NSWLEC 100 to argue that the statutory context is vital in determining whether materially misleading statements would vitiate a decision and utilised sections s 114(2)(c) and s 125(1)(b2) to show that it would not. In oral submissions Newcrest further argued that s 114(2)(c) and s 125(1)(b2) were not considered by the Minister's delegate.

[22]

No false or misleading information provided 117Gold and Copper alleged that information concerning the use of the GoviEx system supplied in the original and amended renewal applications and in the Kitto reports was false or misleading. The statement in relation to Newcrest's use of that system in the Kitto reports is clearly incorrect by the time of the amended May 2009 renewal application as Newcrest had by then cancelled by email dated 22 April 2009 and letters dated 27 April 2009 and 12 May 2009 any arrangement with Gold and Copper to use the system. It is also arguable that by late March 2009 Newcrest was not likely to proceed with that system. The decision to renew EL 3856 was made in March 2011 by the Minister's delegate. 118While this ground was argued on the basis of the supply of false or misleading information, this is disjunctive so that information if false or misleading may establish this ground. Fraud adopting its ordinary meaning of "deceit ... by which it is sought to gain some unfair or dishonest advantage" (Macquarie Dictionary, online version 2013) was not pressed as I understand it. Given the reliance on Anderson by Gold and Copper the case argued is that the information was misleading. In Anderson, a consultant's report lodged with the relevant Minister in support of an application for a development approval under the EPA Act did not refer to a court challenge to the grant of a consent to destroy Aboriginal objects, inter alia. Anderson at [75]-[79] considered whether an innocent misrepresentation was sufficient to vitiate an administrative decision. After considering authorities such as Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 Biscoe J concluded at [79] that misleading conduct which does not amount to fraud, bad faith or similar will not vitiate an administrative decision. 119In Sharples Biscoe J was asked to reconsider this conclusion in Anderson and he confirmed it at [114] - [115] after referring to SZFDE and SZLIX. Sharples concerned a challenge to two rate increases by a local council under the Local Government Act 1993 alleging misleading representation in public consultation processes by a council. Biscoe J distinguished at [117] - [122] cases which establish that a decision which proceeds on a misleading view of the facts because of incorrect departmental advice communicated to a Minister or other elected body or person may be vitiated, from cases where a person whose interests are affected by a decision provides the misleading communication (such as is alleged in this matter). The former cases did not necessarily establish the result that the decision was vitiated in the latter, at [116]. Newcrest is a person whose interests are affected by the decision whether to grant a renewal of EL 3856. The respondent developer in Anderson was also a person whose interests were affected by an administrative decision, albeit in a different statutory context. 120Gold and Copper did not allege deliberate misrepresentation, a matter correctly relied on by the Respondents as essential if this ground is to succeed. Gold and Copper referred to Anderson as holding that a misrepresentation must be more than innocent and then suggested that the Court may not have been taken to all relevant authorities as the matter was argued by a non-legally qualified agent. Given the decision in Sharples to confirm Anderson, evidence of bad faith, or deliberateness at the least in the provision of the misleading information is necessary to succeed on this ground. In the interests of judicial comity (see for example the principles in Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 at [90] per Preston J), I would apply Biscoe J's conclusion in this matter. His Honour's reasoning with which I respectfully concur appears correct. In SZDFE the High Court held that fraudulent behaviour by a third party was fraud perpetrated on the Refugee Review Tribunal in the circumstances of that case. SZDFE concerned a person acting fraudulently as a migration agent giving advice to an applicant not to appear before the Tribunal. In SZLIX the Full Federal Court considered that fraud was not established where a respondent's agent had not informed him of a new hearing date. Bare negligence or inadvertence or a failure to inform was held insufficient to establish fraud. I observe by way of contrast that the facts of those cases are far removed from this matter. 121The case framed by Gold and Copper was that the Mining Act imposed a duty on Newcrest not to provide false or misleading information in support of its application to renew. A conclusion that the unamended Mining Act did impose such a duty does not mean that Gold and Copper succeeds in the absence of evidence establishing bad faith or at least deliberateness in making the misleading statement on the part of Newcrest. An assertion that Newcrest must have known the statement was misleading at the time that it was made in the report of Mr Kitto will not suffice. This ground cannot succeed for this reason. I note that at the time of the application the unamended Mining Act did not include s 114(2)(c) or s 125(1)(b2) so that any duty not to provide false or misleading information would have to be inferred. The only provision dealing with false or misleading information in the unamended Mining Act was s 374 which created an offence for provision of false or misleading information in an application. 122The Respondents submitted that the statutory framework under the current Mining Act does not suggest that the decision would be vitiated in light of s 114(2)(c) and s 125(1)(b2). Section 114(2)(c) provides a discretion to the decision-maker (which includes the Minister administering the Act) to refuse an application for renewal if he or she reasonably considers that an applicant has provided false or misleading information in or in connection with the application. Section 125(1)(b2) provides that after an authority is granted a decision-maker may cancel it if he or she reasonably considers that the holder of the authority provided false or misleading information in relation to an application. 123In addressing the current Mining Act, the Respondents relied on Sharples where Biscoe J held at [77] that "materially misleading statements have the capacity to vitiate a decision in some statutory contexts. Something that is materially misleading may not constitute what the statute requires for validity". The Respondents also cited Moorebank at [69] - [75] concerning an allegation that misleading documents were placed before a local council in the context of determining a development application. Misleading statements were made in a council officer's report and an Independent Hearing and Assessment Panel (IHAP) report to a local council in relation to access to land. Lloyd J referred to the finding in Sharples at [70] that materially misleading statements have the capacity to vitiate a decision in some statutory contexts. The facts in Moorebank are similar to the authorities considered in Sharples at [117] - [122] and to Sharples itself, which cases have accepted that inaccurate advice by a departmental officer to an elected decision-maker which is not misleading in a bad faith sense can vitiate an administrative decision. As already discussed in par 120 these cases are not directly relevant to this case concerning information supplied by a person whose interests are affected by an administrative decision. 124In light of my finding above that innocent misrepresentation cannot establish this ground, and given that the unamended Mining Act was in a different form, I do not need to resolve the extent of the duty imposed under the current Mining Act. 125Gold and Copper also submitted that the information was misleading in a material respect, which it must establish on the civil standard of proof, as it was considered as part of the successful renewal application process within the Department. This submission focussed on one of several statements made in the two Kitto reports in support of a special circumstances application, the departmental minute paper dated 2 June 2009 of Mr Capnerhurst which refers to use of the GoviEx system and a general statement of support for the recommendation to approve by the principal geologist on 6 July 2009. Further, no retraction or correction of the statement in the Kitto reports was made by Newcrest before the renewal in March 2011. Whether misleading information had an impact on the decision-maker sufficient to vitiate a decision must be considered in light of all of the information available to the decision-maker, applying the reasoning in Butcher at [39] by analogy. The High Court there considered misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) and held an agent's conduct must be considered as a whole in determining whether such behaviour occurred. The importance of considering all relevant actions by a party in considering a challenge in judicial review proceedings, albeit on different grounds such as a failure to consider mandatory relevant considerations, has been recognised in many decisions in this Court. 126Gold and Copper submitted that the additional correspondence between Newcrest and Gold and Copper contained in the supplementary bundle of documents (exhibit B) tendered by Gold and Copper demonstrated that the statements made in relation to special circumstances in the Kitto reports about the proposed use of the GoviEx system, repeated in the 2 June 2009 minute of Mr Capnerhurst, was incorrect. As the Minister submitted these communications were unknown to the Department or the Minister's delegate and cannot therefore be relevant to any submission on materiality. As the Respondents submitted both Newcrest and Gold and Copper were separately informing the Department about their respective work programs in the period up to March 2011. That Newcrest did not employ the GoviEx system would have been obvious to the Department from this material. 127It is not sufficiently proven that the statement made about the use of GoviEx system had any or any decisive role in the decision of Mr New concerning satisfaction that special circumstances existed. One obvious reason for that conclusion is my finding in the previous section that there is no evidence of Mr New's satisfaction, on any basis, of special circumstances as required by s 114(6) in March 2011 at the time of the renewal of EL 3856. For reasons articulated by the Respondents, the observations of Mr Wood and Mr Capnerhurst suggest that other factors were relevant to the determination and indeed that Mr Capnerhurst raised a query about the use of the GoviEx system suggesting this was not viewed as necessarily a matter in favour of the renewal application. 128Gold and Copper has not established this ground of challenge.

[23]

Operation of Survey (Geocentric Datum of Australia) Act 1999 129The APOC state: 9. At the time of the Renewal Application and the Renewal, s 114(5) of the Mining Act prohibited the renewal of an exploration licence over land that was not subject to the exploration licence immediately before renewal. 10. The Renewal, by including Canberra Blocks 1284 (j) and (z), occurred in breach of s 114(5) and is thereby invalid and of no effect. 11. In the alternative, the Renewal, by including Canberra Blocks 1284 (j) and (z) in breach of s 114(5) and is invalid insofar as it extends over units (j) and (z). 130On 31 March 2000 the Survey (Geometric Datum of Australia) Act 1999 (the GDA Act) (now repealed) commenced, amending the Mining Act to contain a procedure by which a holder of an exploration licence can, within 90 days of commencement of the amendment, apply for the restoration of land "excluded" because of the change from the Australian Geodetic Datum (AGD) to the Geocentric Datum of Australia (GDA). 29 June 2000 was the last day on which a holder of an exploration licence could validly apply for the restoration of "excluded land" under the amended Mining Act. 131The parties provided detailed submissions on the changes to the identification of units (blocks) of land resulting from the previous AGD system being replaced by the GDA system with the introduction of the GDA Act. The parties agreed that the coordinates of units previously identified in the AGD system moved approximately 120m to the south-west in the GDA system. The result was that land previously within an area covered by an exploration licence could fall outside it. A report by Mr Nesbitt was tendered which identified the changes in the land unit identification system. It is unnecessary to set out the changes in detail given the agreement of the parties. 132The parties agree that Gold and Copper's claim in relation to unit j should be upheld. The Respondents conceded that unit j was not part of EL 3856 before the change to the GDA system. Gold and Copper seeks declaratory (and certiorari) orders that the Minister be directed to remove the reference to unit j on the register as appears on the public record of EL 3856. Unit z remains for consideration. 133The Respondents maintain that the red portion of unit z, being that portion which remains after the area of unit z subject to Mining Lease 1405 was excluded. The irregularly shaped and relatively small area is identified in red on the plan which I marked MFI 1. 134The GDA Act amended s 371 of the Mining Act 1992 and inserted cl 70(5) in Pt 6 of Sch 6 of the Mining Act which provides: 70 Boundaries of exploration licences ... (5) On application made in writing, within 90 days after the commencement of this clause, by the holder of an exploration licence applying to an area from which any land has been excluded by the operation of subclause (1), the Minister, on being satisfied that, before the commencement of this clause, significant evidence of valuable mineral deposits existed in relation to the excluded land, may by order amend the licence so as to restore the whole or a specified part of the land excluded. 135Clause 70(5) provides a procedure whereby a holder of an exploration licence can apply for the restoration of land excluded by reason of the change from the AGD to the GDA system if made within 90 days of the commencement of the clause. Newcrest made such an application by letter dated 4 April 2000 with a supporting report prepared by Mr I J Tedder, geologist. The focus of the report was to identify significant mineral reserves in the Cadia East area. The report states that: CADIA EAST/CADIA FAR EAST DEPOSIT The Cadia East (Inferred Resource of 125 million tonnes at 0.42 g/t Au and 0.48% Cu) and Cadia Far East gold-copper prospects are located immediately to the south east of Cadia Hill mine. The mineralisation at the prospects is contiguous and falls within ML1405, extending south east into EL3856 and also partly within E(P)L 024. Refer to Figures 2 and 3 which show all mineralisation grading better than 0.5 g/t Au equivalent (where 1% Cu = 1.8 g/t Au). Exploration to date has partially defined a large tabular body of quartz vein hosted gold-copper mineralisation with at least 2 km of strike length, 1.5 km down dip extension and up to 250 m wide. The deposit is partially closed off at the north western end around the north side of the Cadia Hill deposit, but is open at the south eastern end towards the eastern boundary of EL3856. It is also open at depth. A conceptual study was completed on Cadia East in July 1999 recommending further exploration drilling and metallurgical test work on the eastern part of the deposit, generally referred to as the Cadia Far East deposit. It is part of the mineralised zone that has the highest grade mineralisation so far discovered. Exploration work is currently progressing between local grid lines 15500E and 16000E using two deep capacity diamond drill rigs with the aim of further defining the potential of the higher grade zone (>2.0g/t Au equivalent). This specific program of drilling has Board approval to spend $2.5m by June 2000 with a further $2.0 m of planned expenditure in the next financial year. In addition, exploration work is planned in order to test for extensions of the Cadia East style mineralisation further to the east, up to the boundary of EL3856. Previous drilling (NC497) in this area discovered low grade copper intercepts (133 m @ 0.21% Cu) accompanied by extensive alteration of the type that is associated with Cadia East mineralisation. These intercepts prove continuity of the mineralisation style further to the east. Refer to plan Figure 3 and cross sections Figure 4 and 5. CONCLUSION Newcrest considers that the eastern boundary EL3856 should be restored to pre-Survey (Geometric Datum of Australia) Act 1999 conditions on the grounds that: Newcrest has drilled a major body of gold-copper mineralisation, including an Inferred Resource to within 450 m of the eastern boundary of EL3856. The Cadia East mineralisation is oriented in such a way that the continuation of the deposit strike into the edge portion of EL3856 is affected by the new Act. Drilling to date close to the boundary of EL3856 has been too shallow to eliminate the possibility of mineralisation continuing up to the original boundary. Newcrest has ongoing commitment to continued exploration of the Cadia East system, including looking for extensions and repeats of the mineralisation further east of known occurrences. 136The report was accompanied by plans labelled Fig 1, 2 and 3, inter alia. The parties marked on Fig 1 a blue square which represented unit z. 137By letter dated 18 April 2000 the Department responded as follows: I refer to your submission which accompanied your letter of 4 April 2000 requesting consideration be given to the restoration of the eastern boundary of your company's Exploration Licence 3856 to pre-Survey (GDA) Act 1999. The eastern boundary you refer to and indicated on the attached copy of Figure 3 you supplied is a non-graticular boundary and as such its location has not moved. Only boundaries based on the graticular system have moved to the south-west to new GDA 94 positions. ... If there are any matters relating to any graticular boundary of Exploration Licence 3856 that need consideration you should notify the Department. 138The letter from Ms W T Moore for the Director-General dated 11 February 2011 enclosing the proposed instrument of renewal of EL 3856 stated: Please note that the description of the area of the licence has changed slightly. Block 1284, Units j and z have been included in the description and Block 1285 Unit g has been excluded, with the total number of units (or part thereof) now being 44. The change in description is due to the shift in co-ordinates upon the introduction of the Geocentric Datum of Australia. The actual land held under the licence has not changed. 139No further document dealing with the issue of unit z is identified in the departmental file(s).

[24]

Gold and Copper's submissions 140Gold and Copper submitted that unit z was not the subject of the application made by Newcrest within the required 90 days under cl 70(5) in April 2000. The Minister cannot therefore be satisfied of the necessary matters specified in cl 70(5). Further cl 70(5) requires that an order be made by the Minister and the letter provided by Ms Moore does not amount to such an order.

[25]

Minister's submissions 141Newcrest could rely on cl 70(5) because unit z was shifted as a result of the move to the GDA system. In 2011 the Minister finally determined that matter after the departmental maps had been updated. It can be inferred that an order was made given the contents of the departmental letter of 11 February 2011. There is no requirement for an order to be in writing. Therefore no breach of s 114(5) occurred.

[26]

Newcrest's submissions 142Newcrest submitted that the seventh renewal extends to unit z because the area moved as a result of the change to the GDA system. Newcrest applied for this land to be restored to EL 3856 by letter dated 4 April 2000, within time. The Minister did not order restoration at that time but did so in the process of considering the seventh renewal in the letter dated 11 February 2011. It can be inferred that the Minister, through his delegate, was satisfied that there was significant evidence of valuable mineral deposits in relation to the land in question prior to 31 March 2000. Therefore the reference to unit z in the renewal is not to new land but to land that had been included in EL 3856 since 11 February 2011.

[27]

Breach of s 114(5) established in relation to unit z 143An application was made pursuant to cl 70(5) in April 2000 by Newcrest. Gold and Copper submitted this application did not relate to unit z. The geologist's report sent in support of the application by Newcrest is worded in general terms. The thrust of the report sent to the department is not directed to the area which includes unit z but to an area further to the east. The report refers in broad terms to the Cadia east area which is distant from unit z. The report refers to evidence of mineralisation in that area. That reflects the wording of cl 70(5) which states that the Minister must be satisfied that, before commencement of that clause, significant evidence of valuable mineral deposits existed in relation to excluded land. The department responded in the negative to Newcrest's request in April 2000 referring particularly to Fig 3. That figure does not include unit z. 144Eleven years later on 11 February 2011 an officer of the department, Ms W T Moore, wrote on behalf of the Director-General to advise Newcrest that the renewal area would include unit z. There is no evidence that the Minister was then satisfied of significant evidence of valuable mineral deposits on unit z as required by cl 70(5). There is also no evidence that the officer writing on behalf of the Director-General was so satisfied. To the limited extent the area the subject of the geologist's report in 2000 can be discerned in the general wording, Newcrest's application does not relate to the area of unit z and is therefore not directed to the identification of significant evidence of valuable mineral deposits in that area. In the absence of any documents on the departmental files which identify the basis on which the officer, assuming she was a delegate of the Minister, determined that she was satisfied of the matters in cl 70(5), the inference reasonably arises that there was nothing before the officer to enable a conclusion that significant evidence of valuable mineral deposits existed in relation to that portion of unit z in dispute and she was therefore not so satisfied. 145There is also no evidence in the departmental officer's letter dated 11 February 2011 of an order amending the licence being made by the Minister or his delegate, a requirement identified in cl 70(5). There is no reference to an order being made in the 11 February 2011 letter sent on behalf of the Director-General. Nor is there sufficient information to infer that this mandatory requirement was complied with. In the absence of a definition of order, the preferable and usual practice is that a ministerial order is recorded in writing. Even if an oral order is made, there is simply nothing to indicate that was done. A letter sent in the usual course of departmental activity cannot suffice to satisfy a statutory requirement that there be a ministerial order. 146Gold and Copper submitted that to the extent that EL 3856 was renewed over unit z, it could be severed in accordance with s 32 of the Interpretation Act and Caroona [2010] NSWLEC 1; (2010) 172 LGERA 25 at [80]-[87]. Both Respondents agreed with that submission. 147Newcrest submitted that exclusion (h) in the definition of the exploration area for the seventh renewal offers a complete answer to the question of whether any land that was not subject to EL 3856 immediately before the renewal was included. It states that the exploration area excludes any land that was not subject to EL 3856 immediately before the renewal. Clarification of the formal record of the extent of EL 3856 would appear warranted for clarity about the scope of EL 3856, which is achieved by the orders sought by Gold and Copper.

[28]

Cross-claim by Newcrest 148In its cross-claim Newcrest claims that if the Court quashes the decision to grant the seventh renewal, then there has been no valid decision made under s 114(1). In that case, the renewal application has not been finally determined and s 117(1) has the effect that EL 3856 remains in force. Newcrest further submitted that the Minister cannot grant an exploration licence to Gold and Copper in the form sought in ELA 4201 until Newcrest's application is finally determined (s 19(1)(a)). Therefore, if the seventh renewal is quashed, Newcrest's renewal application should be remitted to the Minister to be considered according to law and a declaration should be made that ELA 4201 may not be granted in the interim. 149In response Gold and Copper conceded that there is an undetermined application with regards to ground 2 only which concerns whether the Minister's delegate formed a view as to special circumstances. Gold and Copper submitted that if grounds 1 and/or 3 succeed, no undetermined application would exist. Gold and Copper submitted therefore that it would be the most efficient for the Court to examine the cross-claim after orders are made because it will depend on what the Court decides. I will adopt that course and provide the opportunity for the parties to consider this judgment before determining the cross-claim, if required, or making final orders.

[29]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2013

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