Applicant's motion for UCPR r 59.9(4) order
28Whilst conceding that the issue estoppel and Anshun estoppel points defeat the sole ground of judicial review identified in its summons, the applicant submits that the proceeding ought not to be dismissed whilst the notice pursuant to UCPR r 59.9 that it served on the Minister on 26 June 2014 - simultaneously with the summons - remains unanswered. Keeping the current proceeding alive is critical to pressing any new ground of challenge that the response to that notice might disclose. That is because the validity of the decision to renew EL 3856 cannot be challenged in any legal proceeding commenced later than three months after the date on which notice of the grant was published in the Gazette, and that period has expired: s 137(1) Mining Act. Thus, if the current proceeding is dismissed, a new ground could not be pressed in a new proceeding because the latter would be time barred.
29Consistently with its submission, at the hearing of Newcrest's motion on 15 September 2014 the applicant filed, and I heard, a notice of motion seeking orders that the Minister provide to the other parties by 29 September 2014 a copy of the decision to grant the renewal of EL 3856 on 17 February 2014 and a statement of the reasons for the decision prepared in accordance with UCPR r 59.9(3), and that the proceeding be stood over for further directions on 10 October 2014.
30The respondents submit that:
(a)The Court has no power to make a r 59.9(4) order unless, a proceeding for judicial review has been properly commenced.
(b)This proceeding has not been properly commenced and is an abuse of process because under r 59.4(c) the summons had to state the grounds on which relief was sought and the only ground that it stated was barred by an issue estoppel or an Anshun estoppel.
31This issue of power turns on the construction of r 59.9. UCPR Part 59 relevantly provides:
59.3 Commencement and parties
(1) Judicial review proceedings are to be commenced by summons.
...
59.4 Content of summons
The summons must state:
(a) the orders sought, and
(b) if there is a decision in respect of which relief is sought:
(i) the identity of the decision-maker, and
(ii) the terms of the decision to be reviewed, and
(iii) whether relief is sought in respect of the whole or part only of the decision and, if part only, which part, and
(c) with specificity, the grounds on which the relief is sought.
59.5 Service of summons
Within 5 days of filing the summons, or such other time as the court may direct, the plaintiff must serve the summons on each defendant.
59.6 Response to summons
Within 21 days, or such other time as the court may direct, after being served with the summons, each defendant must file and serve a response stating whether the defendant opposes the relief sought and, if so, on what grounds.
...
59.9 Special procedure where public authority is defendant
(1) This rule applies to proceedings for judicial review in which relief is sought in relation to a decision of a public authority.
(2) The plaintiff may, within 21 days of commencing proceedings against a public authority or within such other time as the court may direct, serve on the public authority a notice requiring the public authority to provide to the plaintiff:
(a) a copy of the decision, and
(b) a statement of reasons for the decision.
(3) A statement of reasons for the decision must:
(a) set out findings on material questions of fact, and
(b) refer to the evidence or other material on which those findings were based, and
(c) explain why the decision was made.
(4) If:
(a) the public authority does not comply with a notice under this rule within 14 days of service, or
(b) the plaintiff has not served a notice within the time prescribed by subrule (2),
the plaintiff may apply to the court for an order that the public authority provide the plaintiff with a copy of the decision and a statement of reasons for the decision.
32The relatively new Part 59 of the UCPR commenced in March 2013. The r 59.9 special procedure in judicial review proceedings for service of a statement of reasons for the decision has its antecedents in similar (but not identical) provisions in three earlier court practice notes or rules of court. First, the Land and Environment Court Practice Note - Class 4 Proceedings dated 30 April 2007 at [14], which was replaced by a new Class 4 Practice Note in January 2014 with no provision for the service of reasons (because such a provision was unnecessary given the prior introduction of Part 59 of the UCPR). Secondly, similar provisions in the Supreme Court Practice Note SC CL 3 at [23] governing proceedings in the Administrative Law List of the Common Law Division, which commenced in July 2007. Thirdly, r 4.3 of the Land and Environment Court Rules 2006, which applies to Class 4 judicial review proceedings but at the moment (anomalously) not to Class 8 judicial review proceedings such as the current proceeding. These provisions do not go as far as s 13 of the Administrative Decisions (Judicial Review) Act 1975 (Cth), which creates a right to obtain a statement of reasons regarding reviewable decisions, irrespective of whether or not an application for judicial review has been made.
33The Supreme Court Practice Note SC CL 3 provides at [23]:
Where proceedings have been taken to challenge the decision of a public body or public official, because of the difficulties which at times arise in ascertaining the decision making process and the reasons for the decision, the Court may, at a directions hearing direct the body or person whose decision has been challenged to furnish to the plaintiff within a specified time, a statement in writing setting out the reasons for the decision including findings on material questions of fact referring to the evidence or other material on which those findings were based, the body's or person's understanding of the applicable law and the reasoning processes leading to the decision (compare Administrative Decisions Tribunal Act 1997 (NSW), s49). Otherwise in appropriate cases, orders may be made for such matters to be ascertained by way of particulars, discovery or interrogatories. Subject to this, orders for discovery or interrogatories will only be made in exceptional cases, and such orders will then generally be confined to particular issues. Evidence in matters in the List is normally by affidavit.
34Rule 4.3 of the Land and Environment Court Rules 2006 provides:
4.3 Proceedings for the review of public authority's decision
In any proceedings in which a public authority's decision is challenged or called into question, the Court may make one or more of the following orders:
(a) an order directing the public authority to make available to any other party any document that records matters relevant to the decision,
(b) an order directing the public authority to furnish to any other party a written statement setting out the public authority's reasons for the decision, being a statement that includes:
(i) the public authority's findings on any material questions of fact, and
(ii) the evidence on which any such findings were based, and
(iii) the public authority's understanding of the applicable law, and
(iv) the reasoning process that led to the decision,
(c)an order for particulars, discovery or interrogatories.
35These judicial mechanisms for the furnishing of a statement of reasons superimpose the apparently very limited common law obligations of an administrative decision-maker to furnish reasons: Public Service Board of New South Wales v Osmond [1986] HCA 7, (1986) 159 CLR 656. They operate even where no record of a statement of reasons exists, as is typically the case with administrative decisions within this Court's jurisdiction. Consequently, they are of far greater utility than the provisions for access to government information in the Government Information (Public Service Access) Act 2009 because that Act defines "government information" to mean information held in a record by a government agency and the agency is under no obligation to create such a record in response to an access application: ss 4, 75.
36The beneficial nature, importance and utility of such judicial mechanisms have been emphasised by the Court of Appeal and in a number of decisions of the Land and Environment Court. They are often the only way of revealing whether the decision was made lawfully or unlawfully. In Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154, (2009) 75 NSWLR 169 Spigelman CJ held at [96]-[101] (McColl JA and Handley AJA agreeing) that judicial mechanisms such as that in the Supreme Court Practice Note SC CL 3 at [23] can and should be employed to establish an administrative decision-maker's purpose and whether it was an improper, collateral purpose:
[96] Justice Lloyd was of the opinion that there was no evidence to support the improper, collateral purpose. I agree. The Briefing Note is not such evidence. The author of the Note canvasses the effect that the formation of the opinion may have upon the extant Land and Environment Court proceedings. However, this analysis is that of the author of the Note.
[97] Mr Hutley submitted that the Briefing Note was evidence of the Minister's purpose because it was signed and thereby adopted by him. However, signature does not necessarily indicate "adoption" of the contents. All the Note itself suggests is that the Minister "note" its contents. The contents of a departmental memorandum of this character are not usually evidence of what was in the Minister's mind, nor do they establish the Minister's purpose.
[98] Establishing the purpose of a decision-maker has always generated difficulty in applications for judicial review of administrative decisions where the decision-maker does not identify his or her reasoning process. That is why it was necessary to enact s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 25D of the Acts Interpretation Act 1901 (Cth). There are no equivalent provisions in this State.
[99] However, there are judicial mechanisms for establishing the purpose of the actual decision-maker. In the present case, interrogatories could have been directed to the Minister with a view to eliciting the relevant evidence. Other powers of the court could be called in aid in order to establish the relevant facts.
[100] I refer, for example, to Practice Note SC CL 3 which applies to proceedings in the Administrative Law List in the Supreme Court and which states:
"23. Where proceedings have been taken to challenge the decision of a public body or public official, because of the difficulties which at times arise in ascertaining the decision making process and the reasons for the decision, the Court may, at a directions hearing, direct the body or person whose decision has been challenged to furnish to the plaintiff within a specified time, a statement in writing setting out the reasons for the decision including findings on material questions of fact referring to the evidence or other material on which those findings were based, the body's or person's understanding of the applicable law and the reasoning processes leading to the decision (compare Administrative Decisions Tribunal Act 1997 (NSW), s 49). Otherwise in appropriate cases, orders may be made for such matters to be ascertained by way of particulars, discovery or interrogatories. Subject to this, orders for discovery or interrogatories will only be made in exceptional cases, and such orders will then generally be confined to particular issues. Evidence in matters in the List is normally by affidavit."
[101] It is not, in my opinion, permissible to infer a Minister's purpose from a Briefing Note of the character under consideration. The Minister, who had had a long course of dealing with this issue, did not, by accepting the ultimate recommendation, adopt the whole of the reasoning in the document. It was necessary to establish his purpose in some other way. That was not done.
37Austral was followed in this respect in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 2) [2010] NSWLEC 1, (2010) 172 LGERA 25 at [70] per Preston CJ of LEC.
38In Charlton v Moore (No 2) [2009] NSWLEC 47 at [16] I wrote:
The beneficial nature of such provisions is manifest. In Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124 at 130 Gummow J said of s 13 of the Administrative Decisions (Judicial Review) Act:
Section 13 of the ADJR Act is a remedial provision in that the duty for which it provides stands in high contrast to the apparently very limited obligations at common law of a decision-maker to furnish reasons ... Brennan J recently observed (Miller v TCN Channel Nine Pty Ltd (1986) 60 ALJR 698 at 720-721) that the ADJR Act removes what would otherwise have been procedural obstacles to discovery of the grounds on which discretions have been exercised. The policy which s 13 implements is (as Lockhart J explained in Dalton v Deputy Commissioner of Taxation (NSW) (1985) 7 FCR 382 at 391-392) to provide any citizen having sufficient interest in the matter with material to assist him in determining whether there is any error in the process of reasoning of the decision-maker and, accordingly, to chart his future course of action ... Section 13 is not to be construed grudgingly or with a penchant for technicality.
39In Shellharbour City Council v Minister for Planning [2011] NSWLEC 59 I dealt with the issue of whether a statement of reasons should be ordered prior to the filing of points of claim. After citing Austral, I said at [13]:
Both the Land and Environment Court and the Supreme Court Practice Notes require relevant documents to be made available and a statement of reasons to be provided to the applicant. The purposes of these requirements include: to enable the existence of a legal error made by the decision-maker to be more readily perceived than otherwise might be the case and, to engender confidence in the community that the decision-maker has gone about their task lawfully: see the authorities reviewed in Charlton. Therefore, relevant documents and reasons may inform an applicant's case. This is consistent with [14] of the Class 4 Proceedings Practice Note. In the present case, there seems little point in requiring the applicant, who seeks document and reasons, to plead before seeing them, for it then may only have to amend.
40Similar observations were made in Hooper v Port Stephens Council [2010] NSWLEC 41 at [10] per Sheahan J, and in Vincent Land Pty Ltd v Hyder Consulting Pty Ltd [2012] NSWLEC 105 at [43] per Pepper J. In Hooper Sheahan J struck out the points of claim, made an order for reasons pursuant to r 4.3(b) of the Land and Environment Court Rules and required amended points of claims to be filed thereafter. His Honour took into account scanty information provided by the applicant to support his suspicions that the Council had failed to take account of matters he claimed gave rise to invalidity: at [5], [13], [29]-[31], [36]. In Vincent Pepper J ordered a statement of reasons after concluding that there was no risk of opening the floodgates to an unmeritorious application because the applicant was represented by competent lawyers, was directly affected by the decision, the summons set out the relief claimed in detail and provided more than the barest of bases for challenging the decision: at [56]. Her Honour said at [43]:
There can be no doubt as to the beneficial nature and intent behind r 4.3. A statement of reasons is significant in assisting individuals to assess whether or not an administrative decision can or should be challenged by the institution of judicial review proceedings. The rule also promotes transparency and accountability at all levels of government decision-making, which in turn enhances the legitimacy of those decisions.
41In Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113 at [23] I said:
...it would be a Catch 22 to say (although it is not said in this case) that disclosure of reasons should not be ordered unless unlawfulness of reasoning is pleaded when such pleading is impossible unless the reasons are ordered to be disclosed.
I added at [24]:
I do not see a significant risk of the floodgates being opened to unmeritorious applications for statements of reasons in judicial review cases where applicants invoke statutory open standing provisions. Historically, there has been little more than a trickle of such cases in this court, less than ten per annum, and experience suggests that the sanction of an adverse costs order is meaningful to the applicants in many of them.
42In relation to UCPR r 59.9, in Malesev v Strati [2014] NSWLEC 91 at [14] Craig J said:
Fundamental to the judicial review of a decision made by a public authority is knowing, with precision, the terms of that decision and the reasons for it. Often, the statute under which the decision of a public authority is made does not require the provision of reasons for that decision. The determination by a consent authority of an application for development consent under Pt 4 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) is a case in point. In the absence of statutory provisions requiring a statement of reasons, there is no general law duty on the part of a public authority to provide reasons for its decisions (Public Service Board of NSW v Osmond [1986] HCA 7; 159 CLR 656). Rule 59.9 provides a mechanism for that general principle to be overridden once judicial review proceedings have been commenced.
43The respondents submit that the Court's power to make an order under r 59.9(4) is conditional upon the proceedings being properly commenced by the filing of a summons which states a ground of review that is not manifestly hopeless - otherwise there are no "proceedings for judicial review" within the meaning of r 59.9(1). They seek to gain some traction for that construction from r 59.4(c), which requires the summons to state with specificity the grounds on which the relief is sought.
44Rule 59.4(c) is novel in its requirement that the ground of relief are to be stated in the summons. The object of rr 59.4 and 59.6 is to make a summons and a response in judicial review cases more informative than has historically been the case, and to make pleadings generally unnecessary.
45On the respondents' construction, if an applicant can get its foot in the door by stating in the summons a ground which is not manifestly hopeless or an abuse of process, then the Court is empowered to make an order under r 59.9(4). But, on the respondents' construction, if the applicant does not or cannot do this, then the Court has no power to make such an order.
46In the present case, the summons does state a ground that is not of itself manifestly hopeless; however, it is barred by an issue estoppel. The issue estoppel arising from the first proceeding does not satisfy the general criteria for an abuse of process listed above at [26] because the point was not determined in the first proceeding; rather, it was the subject of an application for leave to amend which was refused because it was made too late. Insofar as the issue estoppel arises from the second proceeding, it appears to satisfy those general criteria but all the circumstances have to be taken into account. Here, there is the additional circumstance that the correctness of the decision to reject this ground in the second proceeding is the subject of a pending appeal. Having regard to that circumstance, particularly if the appeal were to succeed, it may perhaps be inappropriate to characterise the statement of that ground in the summons as an abuse of process.
47The issue is one of construction of r 59.9. The task of statutory construction begins and ends with consideration of the statutory text. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and insofar as, it assists in fixing the meaning of the statutory text. Objective discernment of statutory purpose is integral to contextual construction: Thiess v Collector of Customs [2014] HCA 12, (2014) 306 ALR 594 at [22]-[23] citing Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55, (2012) 87 ALJR 98 at [39]. Ordinarily, the legal meaning attributed to statutory text, read in context, will correspond with the grammatical meaning. But not always: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [78]. Context sometimes favours an ungrammatical legal meaning, which sometimes involves reading statutory text as containing implicit words which are always words of explanation. "The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative intention. Context more often reveals statutory text to be capable of a range of potential meanings...none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies": Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9, (2014) 306 ALR 547 at [65]-[66] per Gageler and Keane JJ.
48In my opinion, the Court's power to make a r 59.9(4) order is not limited in the way that the respondents submit. That provision should be given a purposive, beneficial construction which is consistent with the text and context. The purpose and effect of r 59.9(4) is to empower the Court to enable an applicant in judicial review proceedings to ascertain whether the terms of the decision and the reasons for the decision disclose unlawfulness in the decision-making process and to promote transparency and accountability in government decision-making. However, r 59.9 is not a freestanding provision. Rather, r 59.9 applies only to "proceedings for judicial review in which relief is sought in relation to a decision of a public authority": r 59.9(1). In the present case the summons does seek such relief. Proceedings for judicial review must be commenced by summons: r 59.3(1). Rule 59.9 does not say that it applies only where the summons commencing the proceedings contains all the matters specified in r 59.4. If, in form, the summons does not contain all the matters required by r 59.4 - for example, if it does not specify a ground on which the relief is sought - it does not follow, in my view, that there are no "proceedings for judicial review in which relief is sought in relation to the decision of a public authority" within the meaning of r 59.9(1). There are still such proceedings, as referred to in r 59.9(1), even if the content of the summons is deficient in terms of r 59.4. If that were not so, the consequence of non-compliance with r 59.4 would often be dire because there is often a statutory limitation period for commencing judicial review proceedings and, where there is not, r 59.10 specifies a limitation period of three months. Non-compliance with a form requirement of r 59.4 might not be focused on until the limitation period had expired.
49Whether the discretion to exercise the r 59.9(4) power should be exercised and, if so, in what way is a different issue. When no ground, or only a manifestly hopeless ground, is stated in the summons or otherwise identified and there are no other significant circumstances, it is unlikely that the Court would exercise its discretion at all. However, where disclosure of a copy of the decision and the reasons is the only way, or an important way, in which it can be ascertained the decision-maker has obeyed the legislature's express command that a precondition to the exercise of the power must be satisfied, that may be a more promising case for the exercise of the discretion. It is of such importance as to warrant (depending on the circumstances) favourable consideration by the Court of an exercise of the discretion under r 59.9(4). That is the situation in the present case in relation to the jurisdictional fact in s 114(6) of the Mining Act, which provides:
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.
50Section 114(6) prescribes a jurisdictional fact of the subjective variety: Caroona at [59]. The Minister has to have the mental state of satisfaction that special circumstances exist before he can renew an exploration licence over a larger area than half the previous area. Section 114(6) applies in the present case because the number of units over which the licence was renewed equalled the number of units over which the licence was in force when the application for the renewal was made. Disclosure of the Minister's reasons is an important mechanism, and may be the only mechanism, for ascertaining whether the Minister had the prescribed state of satisfaction. Assuming, as I have held, that the Court has power to make the order sought, the respondents do not submit that the discretion to make the order should not be exercised. In the circumstances, I propose to exercise the discretion to make the order.