Gold and Copper Resources Pty Ltd v The Hon. Chris Hartcher MP, Minister for Resources and Energy

Solicitors: Quinn Emanuel Urquhart & Sullivan (Applicant) Richard Kelly, Acting Crown Solicitor for NSW (First Respondent) Allens (Second Respondent) File Number(s): 80854 of 2013

Judgment

1. Cadia Holdings Pty Ltd (Cadia), the second respondent, owns and operates a gold and copper mining complex known as Cadia Valley Operations. The complex is located approximately 25 kilometres south west of Orange in the Central Tablelands of New South Wales.
2. Cadia Valley Operations comprises underground mines and an open cut mine with associated infrastructure and works. These operations are carried out under a number of mining leases granted under the Mining Act 1992 (NSW). In addition to these mining leases, Cadia Valley Operations are conducted pursuant to a Project Approval granted by the Minister for Planning under Pt 3A of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) on 6 January 2010. Those operations are described in the Project Approval as being the Cadia East Project identified as having the following components: 1. Cadia East underground mine; 2. Cadia Hill open cut mine; 3. Ridgeway underground mine; 4. Blayney and CVO Dewatering facilities; and 5. ancillary infrastructure.
3. Among the mining leases held by Cadia in carrying out its Cadia Valley Operations are ML 1689, granted by the respondent Minister (the Minister) on 11 September 2013, and ML 1690, granted by the Minister on 10 September 2013. These mining leases were granted following applications lodged with the Minister by Cadia on 21 September 2012, being respectively mining lease applications MLA 439 and MLA 440. ML 1689 was granted in response to MLA 439 while ML 1690 was granted in response to MLA 440.
4. By an amended summons filed on 27 February 2014, the applicant, Gold and Copper Resources Pty Ltd (Gold & Copper), challenges the validity of ML 1689 and ML 1690. The issues that its grounds of challenge raise may be shortly stated: 1. whether the grant of ML 1689 and ML 1690 (collectively the Mining Leases) was in breach of s 58(1)(c)(i) of the Mining Act by reason of the fact that on the date of grant of each lease, Gold & Copper was the applicant nominated in exploration licence applications ELA 4201 and ELA 4403 over parts of the land in respect of which the Mining Leases were sought and Gold & Copper had not consented to the grant of those Leases; 2. whether ML 1689 and ML 1690 were granted in breach of the Mining Act as each of MLA 439 and MLA 440, being the applications that founded the grant of the Mining Leases, failed to indicate the mineral bearing capacity of the land to which each application related and therefore each was deemed to have been refused by operation of cl 76(9) of the Mining Regulation 2010 (NSW) (the Regulation); 3. whether the grant of ML 1689 and ML 1690 was manifestly unreasonable because each Mining Lease was granted without any restriction as to the depth of land that was demised and neither mining lease application had included information as to the mineral bearing capacity of the land to which it related nor the extent of any mineral deposits on that land.
5. A fourth ground of challenge, alleging that each mining lease had been granted in breach of s 65(1) of the Mining Act because no "appropriate development consent" was in force in respect of the mining activities the subject of the lease, was not pressed by Gold & Copper at the hearing.
6. Both the Minister and Cadia seek dismissal of the amended summons on the basis that none of the three grounds of challenge have been made out. Further, Cadia submits that even if the third ground of challenge is made out, the Court should nonetheless exercise its discretion to refuse relief, having regard to the transitional provisions of the EPA Act as they relate to a Project Approval granted under the now repealed provisions of Pt 3A of that Act.

Background

1. There is no factual issue of substance between Gold & Copper and the respondents. The evidence is documentary, with each of Gold & Copper and Cadia having tendered a bundle of documents (Exhibits A and 2R1 respectively). Among the documents included in Exhibit A are Statements of Reasons by the Minister for his decision to grant each of ML 1689 and ML 1690. Those Statements of Reasons were prepared for the purpose of these proceedings (cf Pt 59 r 59.9, Uniform Civil Procedure Rules 2005 (NSW)).
2. Among the mining leases that Cadia held prior to the events that give rise to the present proceedings were mining leases ML 1472 and ML 1481. ML 1472 was granted on 23 October 2000 and ML 1481 was granted on 8 March 2001. Each lease identified the land to which it related and identified its purpose as being "prospecting and mining for gold, copper, lead, zinc, molybdenite and silver". Each of those mining leases was expressed to be for a term of 21 years.
3. Project Approval under Pt 3A of the EPA Act for the Cadia East Project was sought by Cadia on 19 September 2008. The Environmental Assessment prepared for the purpose of that application summarised the project in the following manner (par 1.1.3): "The Project would involve development of an underground mine to extract approximately 450 million tonnes (Mt) of ore over a period of 21 years. The ore contains gold, copper and some molybdenum. Development of the Project would occur in conjunction with ongoing operations of the existing Cadia Hill and Ridgeway mines, and if approved, the Project would extend the life of the Cadia Valley Operations to approximately 2030." Both existing and proposed mining operations were described in the text and illustrated by a number of plans and maps.
4. The "Project Snapshot", summarised in Table 1-2 of the Environmental Assessment, states an intention to process "up to 27 Mtpa of gold and copper ore". The same table identifies an intention to upgrade the existing ore processing facilities, associated stockpiles and materials handling equipment.
5. As I have earlier recorded, Project Approval was granted by the Minister for Planning on 6 January 2010. Condition 2 in Schedule 2 to that approval required the proponent (Cadia) to carry out the project generally in accordance with the Environmental Assessment and the conditions imposed by the approval. Mining operations sanctioned by the approval were authorised to take place until 30 June 2031 (Condition 5) and processing was limited to a maximum of 27 million tonnes of ore in a calendar year (Condition 6).
6. A further condition of the Project Approval required that Cadia surrender all existing development consents that it held for the project. The obvious purpose of the condition was that the Project Approval of 2010 would be the only operative approval under the EPA Act controlling development at the Cadia Mine complex.
7. On 15 March 2011, Hetherington Exploration & Mining Title Services Pty Ltd (HEMT) lodged an application for an exploration licence (ELA 4201) over an area of land within the Cadia Valley Operations. That application was made on behalf of Gold & Copper. The application sought "Group 1" minerals which include gold and copper.
8. On 13 October 2011, HEMT lodged a further application for an exploration licence (ELA 4403) over an area of land that also fell within the area of the Cadia Valley Operations. That application was also made on behalf of Gold & Copper and was expressed to be for Group 1 minerals.
9. Mining Lease Applications MLA 439 and MLA 440 were each lodged with the Department of Industry and Investment on 21 September 2012. The form in which each application was lodged required an applicant to elect whether the type of lease required was a "mining lease for minerals" or a "mining lease for mining purposes only". Each form, as completed, nominated that the mining lease sought was for mining purposes only. In the case of MLA 439, the mining purposes stated were: "● Extension of an existing dam ● Extension of an existing tailings facility ● Pipelines ● Works associated with the above." The area of land for which that application was made was 153.9 ha. A map attached to the application indicated the area sought to be in close proximity to ML 1472.
10. In the case of MLA 440, the mining purposes nominated in the application were: "● Extension of an existing tailings facility ● Pipelines ● Works associated with the above." The area of land sought was 70.63 ha. A map attached to the application indicated the area sought to be in close proximity to the ML 1481.
11. Neither mining lease application form, as completed, nominated any mineral that was sought to be mined. The form required that a tick be placed in the appropriate box if the lease was for mining of minerals. That box was left blank and the box "Mining lease for mining purposes only" was ticked.
12. Mining leases ML 1689 and ML 1690 were, so far as is presently relevant, in the same terms. Each lease, in the form of a deed, was expressed to be between the named Minister for Resources and Energy and Cadia. Each lease recited that an application was made "in conformity with the Act" for a mining lease over the lands later described and that "all conditions and things required to be done and performed before granting a mining lease under the Act had been done and performed". The words of grant were then expressed in the following terms: "NOW THIS DEED WITNESSETH that in consideration of the observance and performance of the covenants contained in this Deed, the Minister in pursuance of the provisions of the Act DOES HEREBY demise and lease to the lease holder ALL THAT piece or parcel of land [described by area and plan number] more particularly described and delineated in the plan attached for mining purposes." (Emphasis added)
13. Each lease then continued by requiring that the land described be held: "… together with any appurtenances thereon subject to: (a) such rights and interests as may be lawfully subsisting therein or which may be reserved by the Act at the date of this Deed; and (b) such conditions, provisos and stipulations as are contained in this Deed UNTO the lease holder from and including the date of this Deed for the period of twenty one (21) years for the purpose as stated and for no other purpose." (Emphasis added)
14. The last reference to "purpose" is clearly a reference to the "mining purposes" for which the grant of lease was expressly given. Each of ML 1689 and ML 1690 identified, as the land to which each related, the same area and delineation of land as was the subject of MLA 439 and MLA 440 respectively.
15. At the time at which the Minister determined MLA 439, the land identified in that application was land over which three exploration licences were held. Exploration licences EL 2378 and EL 2984 were held by Climax Australia Pty Ltd (Climax). Exploration licence EL 3856 was held by Newcrest Mining Ltd (Newcrest). Cadia, as the applicant in MLA 439 had obtained the consent of both Climax and Newcrest to the grant of a mining lease prior to that application being determined.
16. The land that was the subject of MLA 440 was partially affected by EL 2378, held by Climax. That company also consented to the grant of the mining lease sought in MLA 440.
17. As would be apparent from the dates upon which exploration licence applications ELA 4201 and ELA 4403 were made on behalf of Gold & Copper, those applications were pending when, in September 2013, the Minister determined to grant ML 1689 in response to MLA 439 and ML 1690 in response to MLA 440. At the time of the Minister's decision to grant those Mining Leases, Gold & Copper had not provided its consent to the Minister so doing.
18. In each Statement of Reasons, the Minister recorded the consents given by Climax and Newcrest, as holders of their respective exploration licences, to the grant of mining leases sought by Cadia in MLA 439 and MLA 440. The Minister also stated that at the time of determining those two mining lease applications, he was aware that ELA 4201 and ELA 4403 were made for land covered by the mining lease applications and that the consent of Gold & Copper had not been obtained to the grant of those mining leases.
19. Annexed to the Minister's Statements of Reasons for granting each of MLA 439 and MLA 440 was a document entitled "Ministerial Letter for Minister", identifying its purpose, in each case, as being the grant of a mining lease "to authorise mining purposes only" in satisfaction of the respective mining lease applications. The Ministerial Letter explained that each application was for mining purposes; identified the area for which each application was made; described the mining purposes intended in each application, noting that this development was associated with Cadia Valley Operations; recorded the receipt of consent from Climax and Newcrest as holders of their respective exploration licences to the grant of each mining lease; recorded the fact that the area the subject of each mining lease application was affected by the exploration licence applications made by Gold & Copper and recommended that a mining lease be granted, subject to conditions, in response to each application. A form of lease, including recommended conditions, was annexed to the Ministerial Letter in each case.
20. The Ministerial Letter also stated that all requirements of the Mining Act pertaining to the respective applications had been met and that development approval under the EPA Act had been granted by the Minister for Planning on 6 January 2010. A copy of the Project Approval was attached. The Minister was also referred to a document containing copies of sections of the Mining Act in the Ministerial Letter.
21. The recommendation made in the Ministerial Letter for the grant of ML 1689 identified the source of power so to do as being ss 58(4) and 63 of the Mining Act. The sources of power founding the recommendation to grant ML 1690 identified ss 58(4), 63 and 135 of the Mining Act as the relevant source of power. Section 135 was identified in the recommendation because land that was the subject of application for ML 1690 included land held by Blayney Shire Council as a public road. Notice of the making of the lease application had not been given to that Council for the full period nominated in cl 21(3) of Schedule 1 to the Mining Act. The advice to the Minister in the Ministerial Letter stated that the late service of notice on the Council had not adversely affected its rights under the Mining Act thereby invoking the need for the Minister to consider s 135.
22. The Statement of Reasons prepared by the Minister relating to ML 1689 recorded the recommendations made to him and that he was aware "of the statutory framework which regulated my decision to grant a mining lease". He continued: "I was satisfied that the requirements for the grant of a mining lease for mining purposes had been fulfilled by Cadia Holdings. Accordingly, I granted the mining lease."
23. The Statement of Reasons prepared by the Minister relating to ML 1690 also recorded the recommendations made to him in the Ministerial Letter and his awareness of the statutory framework regulating his decision. He continued: "I was satisfied that the interests of Blayney Shire Council were not adversely affected by Cadia Holdings' failure to notify it of MLA 440 within 21 days. I was satisfied that the requirements for the grant of a mining lease for mining purposes had been fulfilled by the applicant. Accordingly, I granted the mining lease."
24. Neither of Gold & Copper's exploration licence applications ELA 4201 and ELA 4403 have been determined.

Redaction of the 'Ministerial Letter'

1. The copy of the Ministerial Letter annexed to each of the Minister's Statement of Reasons was a redacted copy of that letter. Gold & Copper sought to establish that there was a proper basis for that material to be redacted. The redacted section in each Ministerial Letter immediately followed reference to the exploration licence applications ELA 4201 and ELA 4403.
2. In support of the redacted copies of these letters, the Minister read the affidavits of Martin Roland Hill and Benjamin Alexander Cramer, both affirmed on 7 April 2014. Both Mr Hill and Mr Cramer are solicitors. Mr Cramer is the Principal Legal Officer in the litigation team of the Legal Services Branch in the Department of Trade and Investment, being the Department responsible for processing the Mining Lease applications.
3. The substance of Mr Cramer's affidavit is that the redacted sections in each Ministerial Letter reflected legal advice provided by a solicitor who, at the relevant time, was the Manager, Mineral Resources and Energy Law of the Legal Services Branch within the Department. That solicitor had provided legal advice as to the operation of certain provisions of the Mining Act in response to a request so to do from the Departmental officer responsible for preparing the Ministerial Letter for the Minister. The evidence of Mr Hill, a solicitor in the employ of the Crown Solicitor's Office, was that he redacted the sections of the Ministerial Letter on instructions from the Minister who instructed him to preserve "legal professional privilege".
4. Having read the evidence, I am satisfied that adducing evidence of the redacted sections of the Ministerial Letters attached to each Statement of Reasons would result in the disclosure of a confidential communication between an employee of the Department, responsible for the administration of the Mining Act, and a lawyer. As my inspection of the unredacted document reveals, that communication in the form of legal advice was prepared for the dominant purpose of the Departmental lawyer providing advice upon aspects of the operation of the Mining Act (s 118 Evidence Act 1995 (NSW)). Therefore, evidence of the redacted portions of the Ministerial Letters may not be adduced.

Statutory Provisions

1. In order to address the issues tendered for determination, it will be necessary to refer to a number of statutory provisions. Some may appropriately be referred to in the context of addressing the particular issue. However, it is appropriate at the outset to identify the principal provisions of the Mining Act directed to the grant and operation of a mining lease. Those provisions are found in Pt 5 of the Act. (The provisions to which I will refer are those in force in September 2013 when the Minister granted ML 1689 and ML 1690.)
2. Section 51 of the Mining Act, being the first section in Pt 5, relevantly provides: "51 Application for mining lease (1) Any person may apply for a mining lease. … (4) An application for a mining lease must: (a) specify the mineral or minerals, or the mining purpose or mining purposes, in respect of which the application is made, …".
3. Relevant to that section are the following definitions in the Dictionary to the Mining Act: (a) mining lease means a mining lease granted under Part 5, and includes a consolidated mining lease; (b) mining purpose means any purpose prescribed by the regulations as a mining purpose for the purposes of this definition.
4. Clause 7 of the Regulation prescribes purposes as "mining purposes" for the purpose of the definition of mining purpose in the Dictionary to the Act. Clause 7(a) includes the construction, maintenance or use "(in or in connection with mining operations)" of any dam or pipeline. Subclause (c) of cl 7 includes the "management or depositing" of tailings "to the extent that it is associated with mineral extraction or mineral beneficiation". I do not understand there to be any issue between the parties that the mining purposes for which ML 1689 and ML 1690 were granted were "mining purposes" within the meaning of cl 7 of the Regulation.
5. Division 2 of Pt 5 of the Mining Act contains restrictions on the grant of mining leases. Section 58, within that Division, relevantly provides: "58 Land subject to authority (1) A mining lease may not be granted over any land: (a) the subject of an exploration licence that includes any mineral or minerals in respect of which the mining lease is sought, or (b) the subject of an assessment lease, mining lease or mineral claim, or (c) the subject of an application for any of the following that was lodged before the application for the firstmentioned mining lease: (i) an exploration licence that includes minerals in respect of which the mining lease is sought, (ii) an assessment lease, (iii) a mining lease, (iv) a mineral claim, otherwise than to or with the written consent of the holder of, or the applicant for, that licence, lease or claim. (2) A written consent given under this section is irrevocable. (3) If, as a result of such a consent, a mining lease is granted over any such land, that land: (a) ceases to be subject to the exploration licence, assessment lease, mining lease or mineral claim concerned, or (b) is excluded from the application for the exploration licence, assessment lease, mining lease or mineral claim concerned, as the case requires, unless the decision-maker makes a determination under subsection (4). (4) The decision-maker may determine that subsection (3) does not apply with respect to the land or to a part of the land if the decision-maker is satisfied that having the land or that part subject to both the lease and the other authorisation concerned is not likely to make the exercise of rights under the lease or the other authorisation impracticable."
6. As will be apparent from my articulation of the first issue to be determined, s 58 is critical to determining whether the Minister had power to grant the Mining Leases. However, in aid of construing that section, the parties refer to s 59. The latter section provides: "59 Land subject to exploration licence (1) If an application for a mining lease is lodged in respect of land that is subject wholly or partly to one or more exploration licences (other than exploration licences that include any mineral or minerals in respect of which the mining lease is sought), the decision-maker must cause notice of the application to be served on the holder of every such exploration licence. (2) The holder of an exploration licence served with such a notice may object to the granting of the mining lease by lodging with the Director-General, on or before the dates specified in the notice, a written notice stating the grounds of the objection. (3) Any such objection is to be taken into consideration by the Minister when determining the application. (4) This section does not apply to an application that is made with the written consent of the holder of every exploration licence over the land concerned. (5) A written consent given under this section is irrevocable."
7. The power to grant a mining lease is found in s 63 of the Mining Act. That section relevantly provides: "63 Power of decision-maker in relation to applications (1) After considering an application for a mining lease, the decision-maker: (a) may grant to the applicant a mining lease over all or part of the land over which a lease was sought; or (b) may refuse the application. … (5) A mining lease may not be granted, in respect of a mining purpose or mining purposes only, unless the decision-maker is satisfied that the mining purpose or mining purposes is or are to be carried out in connection with and in the immediate vicinity of: (a) a mining lease in respect of a mineral or minerals, or (b) a mineral claim, being a mining lease or mineral claim that has been or is proposed to be granted. …"
8. Section 73 of the Mining Act identifies the rights of the holder of a mining lease. The section relevantly provides: "73 Rights under mining lease (1) The holder of the mining lease granted in respect of a mineral or minerals may, in accordance with the conditions of the lease: (a) prospect on the land specified in the lease for, and mine on that land, the mineral or minerals so specified, and (b) carry out on that land such primary treatment operations (such as crushing, sizing, grading, washing and leaching) as are necessary to separate the mineral or minerals from the material from which they are recovered, and (c) carry out on that land any mining purpose. (1A) The holder of a mining lease granted in respect of a mining purpose or mining purposes only may, in accordance with the conditions of the lease, carry out the mining purpose or mining purposes specified in the lease. …"
9. Part 3 of the Mining Act contains provisions pertaining to exploration licences. Section 13(1) enables any person to apply for an exploration licence and subs (4) of that section requires that any such application "specify the group or groups of minerals in respect of which the application is made". Among the particulars required by s 28 to be included in an exploration licence is a description of the land over which it is granted together with "a list of the group or groups of minerals in respect of which it is granted". Once granted, the holder of the licence may in accordance with the conditions attaching to the licence "prospect on the land specified in the licence for the group of groups of minerals so specified": s 29(1).

Issue 1: The grant of ML 1689 and ML 1690 was precluded by s 58(1)(c)(i) of the Mining Act

1. Gold & Copper submits that the provisions of s 58(1)(c)(i) of the Mining Act denied the Minister power to grant either ML 1689 or ML 1690. The proscription against the grant of the Mining Leases expressed in that provision was, so it is submitted, engaged in the present case because: 1. the land over which the Mining Leases were granted is land that is the subject of applications for exploration licences ELA 4201 and ELA 4403 (together, the Exploration Licence Applications); 2. the Exploration Licence Applications were lodged with the Director-General before applications for the Mining Leases were lodged; 3. the exploration licences sought by Gold & Copper each "include minerals in respect of which" the Mining Leases were sought; and 4. Gold & Copper has not provided its written consent to the grant of those leases.
2. Both the Minister and Cadia accept the propositions contained in pars (a), (b) and (d). Those propositions are consistent with the facts that I have earlier recited. The essential difference between the parties is directed to the contention in par (c). As was succinctly submitted on behalf of the Minister, the primary question to be determined in this ground of challenge is whether s 58(1)(c)(i) applies to the Mining Leases as leases for mining purposes only. Both the Minister and Cadia submit that, properly construed, the proscription against the grant of a mining lease expressed in s 58(1) does not apply to a lease for mining purposes only.

The Submissions by Gold & Copper

1. Gold & Copper submits that the term "mining lease" used in s 58(1)(c)(i) should be given the meaning ascribed to it in the Dictionary to the Mining Act. That definition identifies any mining lease granted under Pt 5 of the Act. In so doing, it does not distinguish between a mining lease to mine for minerals and a mining lease for mining purposes, with the consequence that the contingent prohibition expressed in s 58(1) applies to a mining lease of either kind.
2. If, as the respondents contend, a mining lease for mining purposes only is to be excluded from the prohibition, it is necessary to insert additional words into the provision. That would require par (c)(i) of subs (1) to be read in one of two ways: "an exploration licence that includes minerals in respect of which the mining lease [for minerals] is sought"; or "an exploration licence that includes minerals in respect of which the mining lease [other than a mining lease for mining purposes only] is sought."
3. Before reading the statutory provision as if it contained these additional words the Court must be satisfied that an irrational result would otherwise occur (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297 per Mason and Wilson JJ at 320).
4. No irrational result would occur if s 58(1)(c)(i) is read without the notional insertion of the words posited. Had the intention of the legislature been to confine the reference to "mining lease" in that provision to a mining lease for minerals, it could readily have done so. Other provisions of the Mining Act demonstrate that where a distinction is sought to be drawn between the two forms of mining lease, that distinction is expressed in terms.
5. The phrase "in respect of" as used in s 58(1)(c)(i) is important. It is a phrase of wide import and should generally be construed broadly (Trustees Executors and Agency Co Ltd v Reilly (1941) VLR 110 at 111; State Government Insurance Office (Qld) v Crittenden [1966] HCA 56; 117 CLR 412 at 416; McDowell v Baker [1979] HCA 44; 144 CLR 413 at 419). Construing the phrase broadly in the context of the statutory provision under consideration is supported by the use of the words "includes" and "minerals in respect of which" as they appear in that provision. Those words are a clear indication that the term "mining lease" should not be confined to a mining lease other than one for mining purposes.
6. The Cadia East Project and Cadia Valley Operations includes both underground and open cut mines for the mining of gold and copper. The documents accompanying each of MLA 439 and MLA 440 make clear that the mining purposes identified in each application are purposes associated with the Cadia East Project and Cadia Valley Operations. The Minister's Statement of Reasons for granting the Mining Leases acknowledges that association.
7. As a consequence, the Mining Leases both "relate to" a project involving the mining for the minerals gold and copper. Both Leases have only been granted to support those mines. Therefore, the Exploration Licence Applications are applications that include "minerals in respect of which" the Mining Leases were sought.
8. There are two further statutory provisions that support the submission for which Gold & Copper contends. The limitation imposed by s 63(5) of the Mining Act upon the grant of a lease for mining purposes is that the mining purpose or purposes is or are to be carried out "in connection with" a mining lease "in respect of a mineral or minerals". Mining lease applications MLA 439 and MLA 440 were for mining purposes "to be carried out in connection with" other mining leases held by Cadia to mine for gold and copper, being minerals that are the subject of the Exploration Licence Applications. Those Exploration Licence Applications therefore included minerals in respect of which the Mining Leases were sought. Both mining lease applications were made "in connection with" existing mining leases authorising the mining of gold and copper.
9. Reliance upon that submission is strengthened by the opening provisions of cl 7 of the Regulation defining "mining purpose". Paragraph (a) of that clause identifies the construction, maintenance or use "(in or in connection with mining operations)" of any one or more of the mining purposes that are then listed. The expression "mining operations" are defined in the Dictionary to the Mining Act as "operations carried out in the course of mining".
10. It follows that the purposes specified in MLA 439 and MLA 440 are "in connection with" Cadia's mining operations involving mining for gold and copper. The fact that the mining lease applications made by Cadia do not identify any mineral does not mean that they are not sought "in respect of" the minerals gold and copper.
11. The construction of s 58(1)(c)(i) for which Gold & Copper contends is one that facilitates the objects expressed in s 3A of the Mining Act because it operates so as "to encourage and facilitate the discovery and development of mineral resources in New South Wales". The consequence of construing the provision in a manner that excludes a mining lease for mining purposes would result in the land to which the Mining Leases relate being sterilised from the discovery of minerals under Gold & Copper's pending exploration licences. This sterilisation would occur because the Mining Leases, being for mining purposes only, would not authorise the extraction of minerals from the land to which they relate.

Submissions of the respondents

1. Although they differed in their expression, the submissions of the Minister and Cadia were to the same effect. Without intending disservice to the individual submissions, it is appropriate to summarise the effect of those submissions without differentiating between the two.
2. Whether the provisions of s 58(1)(c)(i) are engaged in the present case turns upon the identification of the "minerals in respect of which the mining lease is sought". Clearly, a purpose of that phrase, as it appears in the statutory provision, focusses upon the particular minerals in the two potentially competing applications. For example, had the application for a mining lease sought to mine for a mineral or minerals that were not Class 1 minerals, as sought in Gold & Copper's applications for exploration licences, a mining lease application so framed could have been granted without the necessity for consent from Gold & Copper, subject to the provisions of s 59 of the Mining Act to which later reference will be made.
3. Another purpose of the statutory phrase "minerals in respect of which the mining lease is sought" is to differentiate between mining leases that are sought for mining of a mineral or minerals and mining leases sought only for a mining purpose or purposes. The distinction or differentiation used in the phrase "minerals in respect of which the mining lease is sought" is one used in other provisions of the Mining Act to identify mining leases for mining of minerals.
4. The distinction between an application for a mining lease to mine minerals and an application for a lease for mining purposes is made apparent by the provisions of s 51(4)(a). That provision requires that an application for a mining lease must "specify the mineral or minerals, or the mining purpose or mining purposes, in respect of which the application is made" (emphasis added). As s 51(4)(a) makes clear, an application for a mining lease for mining purposes is not required to specify the mineral or minerals in respect of which the application is made. Such an application is not an application for mining in respect of minerals. It is also relevant to note that the connecting phrase "minerals in respect of which the application is made" is the same in both s 51(4)(a) and s 58(1)(c)(i).
5. The distinction or differentiation also appears in s 73 identifying the rights arising under a mining lease. As subs (1) provides, the holder of a mining lease "granted in respect of a mineral or minerals" may prospect for and mine "the mineral or minerals" specified in the mining lease. That right is to be contrasted with the right afforded by subs (1A) of s 73 to the holder of a mining lease granted in respect of a mining purpose or mining purposes only to "carry out the mining purpose or mining purposes specified in the lease".
6. The statutory language identifying the difference between the two forms of mining lease is also expressed in s 63(5)(a) of the Mining Act. By its terms, the subsection requires that a mining lease "in respect of a mining purpose or mining purpose only" may not be granted unless the decision-maker is satisfied that the mining purpose or mining purposes are to be carried out "in connection with and in the immediate vicinity of" a mining lease "in respect of a mineral or minerals" or a mineral claim. Importantly, the language of the subsection provides a contextual indication that a mining lease for mining purposes is not itself a mining lease that is either sought or granted "in respect of a mineral or minerals".
7. Consistent with the statutory scheme demonstrated by the provisions to which reference has been made, mining lease applications MLA 439 and MLA 440 were, in terms, applications for mining purposes only. In neither mining lease application were there "minerals in respect of which the mining lease [was] sought".
8. To construe s 58(1)(c)(i) by excluding its application to a mining lease that is for mining purposes only does not require reading additional words into the provision or the application of the principle considered in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation at 320. The construction for which the respondents contend is the consequence of responding to the question posed by that provision: what were the minerals in respect of which the mining lease was sought in each of MLA 439 and MLA 440? Clearly, there were none.
9. Support for the construction to which the respondents contend is also found in the legislative history of s 58. The section was amended in 2008 by the Mining Amendment Act 2008 (NSW). Prior to the amendment effected by that Act, s 58(1)(c) provided: "58 Land subject to authority (1) A mining lease may not be granted over any land: (a) the subject of an exploration licence that includes any mineral or minerals in respect of which the mining lease is sought, or (b) the subject of an assessment lease, mining lease or mineral claim, or (c) the subject of an application for an exploration licence, assessment lease, mining lease or mineral claim that was lodged before the application for the firstmentioned mining lease was lodged, otherwise than to or with the written consent of the holder of, or the applicant for, that licence, lease or claim."
10. In that form, there was disconformity between the constraint in s 58(1)(a) and that imposed by par (c) of the same subsection. Under par (a), a mining lease could be granted over land that was the subject of an exploration licence where the mining lease sought to mine a mineral or minerals that did not include any of those nominated in the exploration licence. It would also have allowed the grant of a lease for mining purposes only. However, par (c) operated to prevent the grant of a mining lease over land that was the subject of an application for an exploration licence (absent the consent of the applicant) even where the mining lease sought to mine a mineral or minerals that were not included among the minerals sought in the application for the exploration licence. Indeed, it would also have prevented the grant of a mining lease where that lease did not nominate any mineral to be mined, in that it sought a lease for mining purposes only.
11. That disconformity was remedied by the Mining Amendment Act 2008 by which s 58(1)(c) was omitted and the current form of the subsection inserted. This has the consequence that the constraint upon the grant of a mining lease expressed in s 58(1) applies where either an exploration licence or an application for an exploration licence includes "minerals in respect of which the mining lease is sought". The Explanatory Note for the Amending Act states "Schedule 1 [16] amends section 19 of the Principal Act to remove the requirement for an existing prior applicant for an exploration licence to consent to the grant of an exploration licence, if the application does not relate to a group of minerals covered by the licence to be granted. Schedule 1 [32], [51] and [134] amend various sections of the Principal Act to make similar amendments in relation to assessment leases, mining leases and mineral claims". It was by Schedule 1 [32] that the amendment to s 58(1)(c) was effected.
12. Contrary to the submission of Gold & Copper, the phrase "in respect of" is not, in context, to be given the broad test of nexus for which it contends. Section 58(1)(c)(i) is only concerned with the minerals "in respect of which" the particular mining lease in question is sought. Neither in text nor context does the provision invite an inquiry as to whether other mining leases, including related mining leases, have been sought or granted in respect of particular minerals. Mining lease applications MLA 439 and MLA 440 sought leases for mining purposes only, and in so doing identified those purposes as having the requisite connection with mining for minerals authorised under different mining leases. The minerals that are the subject of the latter mining leases are not minerals in respect of which MLA 439 and MLA 440 were made.
13. For one subject matter to be "in respect of" another, there needs to be a "discernible and rational link" between those subject matters (Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; 167 CLR 45 at [47]-[48]). The legislative context is critical when understanding the connection to which the legislature is referring when using the phrase "in respect of" (Australian Communications Network Pty Ltd v ACCC [2005] FCAFC 221; 146 FCR 413 at 420).
14. Finally, the construction for which Gold & Copper contends is incompatible with s 59 of the Mining Act. By subs (1) of that section, notice must be given of an application for a mining lease to the holder of an exploration licence in respect of land that is wholly or partly subject to a mining lease application. The holder of the exploration licence may then, by written objection, object to the grant of the mining lease (subs (2)). That objection is to be taken into consideration by the Minister when determining the mining lease application (subs (3)). The exception to the obligation to give notice in accordance with subs (1) is expressed in that same subsection as arising when the existing exploration licence includes "any mineral or minerals in respect of which the mining lease is sought".
15. It follows that the mechanism for determining whether a mining lease for which application is made to mine a specified mineral or minerals corresponds with an existing exploration licence granted in respect of different minerals, is a regime of notice, enabling the holder of the exploration licence to object and requiring the Minister to consider that objection before granting the mining lease. Such a regime is not consistent with a contention that an application for a mining lease for mining purposes only requires the consent of an applicant for an exploration licence before the mining purposes lease can validly be granted. As Cadia submitted, the legislature could not have intended that the granting of such a lease should attract a higher level of constraint in favour of an applicant for an exploration licence than is afforded to an existing exploration licence holder when a mining lease is sought for a mineral that is not among those nominated in the licence.
16. The provisions of s 59(1) provide the statutory basis for the consent to have been obtained from and given by Climax and Newcrest to MLA 439 and MLA 440. Contrary to the submission of Gold & Copper, the fact that those consents were given and relied upon by the Minister when granting ML 1689 and ML 1690 provides no support for the construction of s 58(1)(c)(i) for which Gold & Copper contends. Those consents simply reflect observance of the statutory provisions.

Consideration

1. I accept the submission of the Minister and Cadia that when determining MLA 439 and MLA 440 the provisions of s 58(1)(c)(i) of the Mining Act did not deny to the Minister the power to grant mining leases (ML 1689 and ML 1690) in response to those applications. I do so essentially for the reasons they have articulated in their respective submissions, as I have endeavoured to summarise them.
2. The focus of the submissions by Gold & Copper is upon the definition of "mining lease" expressed in the Dictionary to the Mining Act. In my opinion, that focus is too narrow for the purpose of construing the provisions of s 58(1)(c)(i). In Gibb v Federal Commissioner of Taxation [1966] HCA 74; 118 CLR 628 Barwick CJ, McTiernan J and Taylor J observed at 635 that a definition clause (or Dictionary) is no more than an aid to the construction of the statute being considered and does not operate in any other way. That decision underlines the proposition "that the meaning of a definition turns on the context in which it appears, considered as a whole" (Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379).
3. As explained by McHugh J in Kelly v The Queen [2004] HCA 12; 218 CLR 216 at [103], it is not the function of a definition to enact substantive law. His Honour continued: "Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment … To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment…".
4. The circumstance that, by definition, a "mining lease" means a mining lease granted under Pt 5 of the Mining Act does not compel the result that in every substantive provision in which the expression "mining lease" is used, the expression will always comprehend a mining lease of any kind granted under that Part. As McColl JA (Beazley JA agreeing) observed in Cranbrook at [40]: "It should also be recognised that even though the words 'unless the contrary intention appears' do not appear in a definition section, they are implied [citation of authority omitted]. This also ensures that a definition is not interpreted in a manner which would defeat a meaning required by the context [citation of authority omitted]."
5. For reasons reflected in the submissions of the respondents as I have summarised them, neither the text of s 58(1)(c)(i) nor its context in Pt 5 of the Act justifies the term "mining lease" being read in the way for which Gold & Copper contends. The adjectival constraint imposed by the phrase "in respect of which a mining lease is sought" must be given work to do. The phrase clearly intends that the disqualifying aspect of the mining lease for which application is made is that the minerals for which the mining lease is sought are minerals that are included in the application for an exploration licence.
6. I did not understand Gold & Copper to submit, at least in express terms, that an application for a mining lease for the mining of minerals that did not include any mineral for which a prior exploration licence application had been made, would engage the operation of s 58(1)(c)(i). If my understanding in this regard is correct, there is no rational basis upon which to accept that the granting of such a lease did not engage the provision but that the grant of a mining lease for mining purposes only would be prohibited by s 58(1)(c)(i), absent the consent of the exploration licence applicant.
7. Should my understanding of Gold & Copper's position be incorrect and the purport of its submission be that an application for any mining lease granted under the provisions of Pt 5 of the Mining Act may not be granted where the mining lease sought is over land for which a prior exploration licence application has been made, the qualifying or adjectival words in par (c)(i) "that includes minerals in respect of which the mining lease is sought" would have no work to do. Paragraph (c)(i) of s 58(1) would achieve the construction for which Gold & Copper contends if the only words in subparagraph (i) were "an exploration licence", just as has occurred in subparagraphs (ii), (iii) and (iv) of par (c).
8. It is contrary to general principle that a statutory provision be read as if some of the words in that provision are superfluous as having no meaning or effect (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71]). I see no reason why effect should not be given to all of the words expressed in s 58(1)(c)(i).
9. I do not accept that the phrase "in respect of" in s 58(1)(c)(i) should be given the broad meaning for which Gold & Copper contends. While early authority cited in the submissions of Gold & Copper supported the general proposition that the phrase was of wide import and should generally be construed broadly, more recent authority has recognised that the context in which the phrase is used may require a narrower construction. In Technical Products Pty Ltd v State Government Insurance Office (Qld), Brennan, Deane and Gaudron JJ at 47 described those words as having "a chameleon-like quality in that they commonly reflect the context in which they appear".
10. In Travelex Ltd v Commissioner of Taxation [2010] HCA 33; 241 CLR 510, French CJ and Hayne J said at [25]: "It may readily be accepted that 'in relation to' is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that 'the subject matter of the enquiry, the legislative history, and the facts of the case' are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply "in relation to" rights [citations omitted]."
11. Further, I do not accept the submission of Gold & Copper that the use of the word "includes" in s 58(1)(c)(i) supports the broad construction of the phrase "in respect of" for which it contends. The word "includes" is used in the statutory provision for the purpose of identifying minerals that are the subject of an application for an exploration licence. The word is used to ensure that if there are minerals sought in an application for a mining lease that are also minerals "included" in, but not necessarily coextensive with, those minerals identified in an earlier application for an exploration licence, the mining lease may not be granted. Their purpose is to identify the basis for determining consistency between the two kinds of application and as a consequence the need for the consent of the exploration licence applicant before a mining lease for minerals can be granted.
12. The phrase "in respect of" cannot be interpreted so broadly as to ignore its context in s 58(1)(c)(i). As the second respondent submitted, the phrase requires that there be a "discernible and rational link" between the subject matters identified in the statutory provision being considered (Technical Products Pty Ltd v State Government Insurance Office (Qld) at 47). The only discernible and rational link in s 58(1)(c)(i) is between those minerals included in the exploration licence application and the minerals that are the subject of the application for the mining lease which is being determined. Where, as here, there are no minerals that are the subject of the mining lease application, there is no relevant nexus that engages the section.
13. The circumstance that MLA 439 and MLA 440, conformably with s 63(5) of the Mining Act, identified the mining purposes as being carried on in connection with existing mining leases in respect of minerals does not expand the necessary nexus. The requirement that the mining purposes that are the subject of the mining lease applications "be carried out in connection with and in the vicinity of" those existing mining leases, does not identify the minerals being mined under those existing leases as minerals in respect of which MLA 439 and MLA 440 were sought.
14. By focussing upon the definition of "mining lease" and then the phrase "in respect of" when seeking to construe s 58(1)(c)(i) has, it seems to me, involved a fragmented approach to the construction of the provision which detracts from the discovery of its meaning and purpose as a whole. The fragmented approach to the statutory construction of a composite expression such as that found in s 58(1)(c)(i) is contrary to principle. In Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 400, the plurality cited with approval the observations of Oliver LJ in Exxon Corporation v Exxon Insurance Consultants International Ltd [1982] Ch 119 where his Lordship said (at 144): "…for my part I do not think that the right way to apply a composite expression is, or at any rate is necessarily, to ascertain whether a particular subject matter falls within the meaning of each of the constituent parts, and then to say that the whole expression is merely the sum total of the constituent parts. In my judgment it is not necessary, in construing a statutory expression, to take leave of one's common sense". Reading the provisions of s 58(1)(c)(i) as a composite expression of the prohibition sought to be imposed by that provision does not yield the result for which Gold & Copper contends.
15. For the reasons stated, the challenge made by Gold & Copper to the validity of ML 1689 and ML 1690 by reason of alleged breach of s 58(1)(c)(i) of the Mining Act has not been made out.

Issue 2: Deemed refusal of MLA 439 and MLA 440 by operation of cl 76(9) of the Regulation

1. The provisions of s 51(4)(a) have earlier been quoted. Paragraph (c) of subs (4) requires that an application for a mining lease "be accompanied by the required information". Subsection (5) relevantly provides: "(5) The required information is as follows: (a) a description, prepared in the approved manner, of the proposed mining area, (b) an assessment of the mineral bearing capacity of land in that area and of the extent of any mineral deposits in that land, …"
2. Cadia admits that the two mining lease applications in question were not accompanied by the information to which s 51(5)(b) refers. In each form of mining lease application there was a heading titled "Accompanying this Application" beneath which were the printed words "Mark the appropriate boxes with X or N/A (Non-applicable)". Beneath that heading in a series of lettered paragraphs was a description of various documents or information. Against each description was a blank box to be marked with the "appropriate" letter or letters.
3. Paragraph (d) of that list referred to an "assessment of the mineral bearing capacity of land in the mining area and of the extent of any mineral deposits in that land". The box against that paragraph in the form of application for MLA 439 and MLA 440 respectively has been marked "N/A". Both the Minister and Cadia deny that the information identified in s 51(5)(b) was required to accompany MLA 439 and MLA 440.

The Submissions by Gold & Copper

1. Neither the requirement imposed by s 51(4)(c) that a mining lease application be accompanied by the "required information" nor the content of that information identified in s 51(5)(b) distinguish between a mining lease for minerals and a mining lease for mining purposes. The obligation to provide that information applies to applications for mining leases of either kind. Reliance is placed upon the Dictionary definition of "mining lease" to support that submission.
2. The obligation imposed by s 51(4)(c) to accompany a mining lease application with the "required information", whether the application be for a mining lease for minerals or a mining lease for mining purposes only, is supported by the amendments made to s 51 by the Mining Amendment Act 2008. Prior to 15 November 2010, when the relevant provisions of the 2008 Amending Act commenced, s 51(3) expressly identified the "required particulars, in the case of an application that specifies a mineral or minerals" while s 51(5) separately specified the "required particulars, in the case of an application that specifies a mining purpose or mining purposes".
3. As will be apparent, the present provisions of s 51(5) do not replicate the former provisions by distinguishing between the "required information" for an application that specifies a mineral and an application that specifies a mining purpose. The absence of the distinction that had formerly been drawn supports the submission that the present provisions operate to require that information to accompany an application for either form of mining lease. To construe the present form of s 51 as maintaining the distinction reflected in the now repealed form of s 51 would give the amendment effected by the Mining Amendment Act 2008 no work to do. Such a construction should not be adopted (Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at [97]).
4. No ambiguity exists as to the information required by s 51(5) and the section does not, by its terms, identify any discretion available to the decision-maker to waive compliance with the requirement. The information identified in s 51(5)(b) was required to accompany each mining lease application.
5. By reason of the failure to provide the information that was required to accompany the mining lease applications, those applications were deemed to be refused 10 days after lodgement by operation of cl 76(9) of the Regulation. That clause provided: "(9) If an application is lodged and any information that is required to accompany that application is lodged with the Director-General more than 10 business days after the lodging of the application, the application is taken to have been refused."
6. The mining lease applications were lodged on 21 September 2012. As the Mining Leases were not granted until 11 September 2013, there was no power in the Minister so to do, the deeming provision of cl 76(9) having long since taken effect.
7. The construction of subss (4) and (5) as earlier stated is consistent with the objects set out in s 3A of the Mining Act. The statutory object of encouraging and facilitating "the discovery and development of mineral resources" in this State are again identified. In light of the statutory object so expressed, an assessment of the mineral bearing capacity and extent of mineral deposits on the lands that are the subject of MLA 439 and MLA 440 would be "required information" before a mining lease for mining purposes was granted having the effect of sterilising the land from exploration for the term of the lease.
8. Construing the statutory provisions in the context of that object, the "required information" identified in s 51(5) was necessary to be lodged with or "accompany" the mining lease applications. As the information was not provided, by operation of cl 76(9) the mining lease applications were deemed to have been refused, with the consequence that ML 1689 and ML 1690 are invalid.

Submissions of the respondents

1. The Minister submits that the ground of challenge to the validity of the Mining Leases founded upon s 51(5) of the Mining Act and cl 76(9) of the Regulation should be rejected for two reasons. First, s 51(5) should be read as distinguishing between a mining lease for minerals and a mining purposes lease. Second, even if the subsection is interpreted as including a reference to any mining lease granted under Pt 5, the failure to provide information that "is not necessary for the Minister's decision" does not result in a deemed refusal of a mining lease application by operation of cl 76(9) of the Regulation.
2. Reference is made to the provisions of s 51(4)(a) to emphasise the difference recognised in the subsection between an application for a mining lease for minerals and one for mining purposes only. That distinction should be carried through to the proper contextual interpretation of s 51(4)(c) and s 51(5). Relevant to this distinction is that to which earlier reference has been made, namely that in an application for a lease for mining purposes only, no minerals are nominated.
3. The need to draw the distinction between the two forms of lease is not affected by the provisions of the Mining Amendment Act 2008. The provisions of the amending legislation need to be understood in context.
4. Section 5 of the Mining Act prohibits either prospecting for or mining any mineral except in accordance with "an authorisation that is in force in respect of that mineral and the land where the prospecting or mining is carried on". Section 6 separately imposes a prohibition against the carrying out of "a mining purpose specified for the purposes of this section except in accordance with an authorisation that is in force in respect of the land where the purpose is carried out". The word "authorisation" is defined in the Dictionary to the Mining Act relevantly to mean "an authority" while the word "authority" is defined in the Dictionary to mean "an exploration licence, an assessment lease or a mining lease". These sections reflect the separate identity of the different forms of "authority", including the separate identity of a mining lease for minerals and one for mining purposes.
5. The 2008 amending legislation did not alter that distinction. The requirement that a mining lease application be accompanied by "the required information" in turn requires that each paragraph of s 51(5) be read as necessitating the provision of the "information" insofar as it is applicable to the substance of the application being made. Where a mining lease for mining purposes only is sought, there is no sense in first requiring an assessment of the mineral bearing capacity of the land.
6. The second basis for rejecting the submission of Gold & Copper is that cl 76(9) of the Regulation should not be read as deeming an application for a mining lease to be refused when there is a failure to provide information that has no relevance to the kind of mining lease being sought. If information identified in s 51(5) has no relevance to the mining lease application because that lease is sought for mining purposes only, it would not be consistent with the text of cl 76(9) to operate so that the absence of that information deems the application to have been refused.
7. Section 382 of the Mining Act relevantly provides: "382 Applications and tenders generally (1) An application … under this Act must be in or to the effect of the approved form. (1A) If an approved form requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to it, or furnished with it, that information. …"
8. While the "approved form" referred to in that section cannot control the meaning of provisions in the Act itself, cl 76(9) of the Regulation must be read in conjunction with the approved form. That form places boxes against a number of items listed under the heading "Accompanying this Application", including the item directed to the mineral bearing capacity of the land and expressly contemplates that such a box may be marked "N/A". Where a box is so marked, as it was in respect of MLA 439 and MLA 440, cl 76(9) had no operation in respect of that information.
9. Although there is an overlap, the submission of Cadia had a different emphasis. Its submission emphasised that a failure to provide the "required information" did not result in invalidity of the Mining Leases. The proposition that a mining lease may not be validly granted if there is a deficiency in the application for that mining lease, being a deficiency of the kind relied upon by Gold & Copper, is a proposition that has been rejected by this Court in Martin v State of New South Wales and Central West Scientific Pty Ltd [2011] NSWLEC 50 and by the Court of Appeal in Martin v State of New South Wales (No 14) [2012] NSWCA 46.
10. The litigation in Martin relevantly included a challenge to the validity of an exploration licence on the ground that "required particulars" of the applicant's financial resources and its program of works had not accompanied an application for an exploration licence. The need to provide the "required particulars" was imposed by s 13(2) of the Mining Act in the form which the section then took, and those "required particulars" were identified in s 13(3). The obligation to provide those particulars was imposed in terms that bear a close similarity with the provisions of subss (4) and (5) of s 51 as those provisions address an application for a mining lease. Other provisions of the Mining Act relied upon in the decision in Martin, including ss 135 and 382, applied to an "authority" required or granted under the Mining Act being, relevantly, a reference to both an exploration licence and a mining lease.
11. The decision by Preston CJ in this Court, dismissing Mr Martin's challenge, was upheld in the Court of Appeal. The essence of each decision was that the statutory scheme for the grant of an authority (mining lease) did not manifest a legislative intent to invalidate acts made as a consequence of determining a defective application for the authority sought. The reasoning leading to that conclusion did not depend on an analysis of the degree of compliance, or non-compliance, with the requirement imposed.
12. The decision in Martin is not avoided by invoking the provisions of cl 76(9) of the Regulation. That clause has no operation in the present case. There was no information required to accompany either MLA 439 or MLA 440 that was lodged with the Director-General more than 10 business days after those applications were lodged. The argument, that the clause should be read as if it applied in all cases where information required to accompany an application was not provided with that application or within 10 days thereafter, cannot be sustained. That is not what the clause says. Its true meaning and purpose needs to be understood both in the context of the Mining Act itself and in the context of all of the provisions of cl 76.
13. In the context of applications for an authority under the Mining Act, the chronological order in which applications are made is of significance. The provisions of ss 58 and 59 to which earlier reference has been made illustrate the importance of priority when considering potentially competing exploration licences and mining leases.
14. Clause 76 is directed to "applications" made under the Act, that is, the clause does not distinguish between an exploration licence and a mining lease. Subclauses (3), (4), (5), (6), (7) and (8) of cl 76 contain quite specific rules as to the precise date and time at which an application for an authority is taken to be made, depending upon such matters as the mode of delivery and the time at which an application fee is paid.
15. In this context, it is apparent that cl 76(9) is directed to the circumstance in which an applicant for an authority lodges an incomplete application in order to achieve priority over other potential applicants but then seeks to rectify deficiencies with that application by lodging further information at a later date. The regulatory policy manifest in the subclause is that any applicant for an authority, seeking to maintain the priority that the making of the application will afford, lodge material with the application, or within 10 days of the application being lodged, so that thereafter the decision-maker may proceed to determine that application.
16. So understood, the "judicial redrafting" required to give effect to the interpretation for which Gold & Copper contends cannot be justified. So much more is that the case in a deeming provision of the kind reflected in cl 76(9). According to the submission of Gold & Copper, the clause has the effect of invalidating all applications for mining leases or the grant of mining leases made pursuant to them where those applications do not include any of the particulars required under the Mining Act or the Regulation. So interpreted, it is a provision that would extinguish rights of an applicant for an authority and should therefore be given a strict construction. As a deeming provision, it purports to prescribe the consequence of an application for an authority independently of the manner in which the decision-maker has dealt with it. Such a consequence also justifies a narrow construction. In Polydor Ltd and RSO Records Inc v Harlequin Record Shops Ltd and Simons Records Ltd [1980] 1 CMLR 669 at 673, Megarry V-C held that a deeming provision is a "hypothetical" which "must not be allowed to oust the real further than obedience to the statute compels".
17. Finally, in addressing the Minister's response to the amended summons, Gold & Copper submitted that the construction of s 51 for which the Minister contended was inconsistent with the "Guide to Decision Reviews and Appeals" published on the Minister's Departmental website. That observation is irrelevant. Whatever interpretation may have been given by the author of that Guide is irrelevant to the proper construction of cl 76(9), both in the context of the clause as a whole and in the context of the provisions of the Mining Act.

Consideration

1. I am not persuaded that the failure to provide information required by s 51 of the Mining Act so as to accompany MLA 439 and MLA 440 results in the invalidity of ML 1689 and ML 1690. I have reached that conclusion substantially for the reasons articulated in the submissions of the Minister and Cadia, particularly those submissions of Cadia directed to the decision of this Court and of the Court of Appeal in Martin. In my opinion, there is no proper basis upon which to distinguish the latter decision by reference to the statutory and regulatory provisions being considered in the present proceedings.
2. As I have stated when summarising the submissions of Cadia, the invalidity claimed in Martin was founded upon s 13 of the Mining Act. That section addressed the requirements when making an application for an exploration licence. Although s 13(2) in the form that it then took identified in par (c) the requirement for an exploration licence application to be accompanied "by the required particulars" and subs (3) identified those "required particulars", there is no difference of substance between the latter expression and the requirement now imposed in s 51(4) that an application be accompanied by "the required information". The change in expression between "required particulars" and "required information" is a product of the 2008 amending legislation. Prior to that amendment, s 51 also used the expression "required particulars".
3. It is correct to observe, as Cadia submitted, that there is a close similarity between the provisions of s 13 and s 51. Each contain a subsection requiring that the respective applications be accompanied by the required information (particulars) followed by a further subsection in which the required information (particulars) is identified.
4. As s 16 of the Mining Act enabled the Minister to require further information following lodgement of an application for an exploration licence, so also s 54 enables the decision-maker to require the applicant for a mining lease to provide further information in connection with the application. Indeed, it is appropriate to refer to the statutory provisions pertaining to an application for a mining lease as being "parallel provisions" with those pertaining to applications for exploration licences.
5. There are two further provisions of the Mining Act relevant to a consideration of the decision in Martin that must be noticed. I have already referred to the relevant provisions of s 382 directed to any application under the Act, whether made for an exploration licence or made for a mining lease. The second provision to be noticed is s 135. It provides: "135 Waiver of minor procedural matters (1) The decision-maker may grant … an authority even though the applicant has failed to comply with a requirement of this Act or the regulations: ... (c) as to the information to accompany any application… (2) This section does not authorise the decision-maker to grant … 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." The only difference between the present form of that section and that considered in Martin was that the term "decision-maker" was substituted for the word "Minister" and in subs (1)(c) the word "information" was substituted for the word "particulars", no doubt reflecting the changed nomenclature in ss 13 and 51 following their amendment by the 2008 amending Act.
6. In giving his decision in Martin in this Court, Preston CJ articulated a number of reasons for interpreting the Mining Act in a manner that did not result in invalidity of the exploration licence in question because the requisite particulars had not accompanied the application. His Honour relied at [93] - [96] upon the provisions of both subss (1) and (1A) of s 382 and the provisions of s 135 to support his conclusion at [92] that the provision of the required particulars was not necessary to enliven the power of the Minister to grant the exploration licence that was sought.
7. Just as s 63(1) of the Mining Act enables the decision-maker either to grant or refuse to grant a mining lease "after considering an application" for that lease, so also the Minister ("the decision-maker" prior to the 2008 amending Act) was vested with a discretion under s 22(1) to grant or refuse an exploration licence "after considering an application" for that licence. The Court of Appeal in Martin at [40] referred to the discretion of the decision-maker to grant or refuse an application under s 22(1) as allowing him or her to decide "whether the information provided [in the application] was sufficient for the Department's purposes". The Court of Appeal then referred to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority where at [91] the latter Court had said: "An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."
8. The Court of Appeal concluded at [42] that the statutory framework of the Mining Act did not require that the failure of the applicant to provide financial information "in the approved form" invalidated the application and any licence granted in response to it. Reference to the "approved form" was that required by the general provisions of s 382(1) which, as I have shown, equally requires an application for a mining lease to be submitted "in or to the effect of" the approved form.
9. However, leaving reference to the "approved form" aside, the financial resources available to an applicant for an exploration licence was a "required particular" under s 13(3) (as that provision was framed prior to the 2008 amending Act) just as the mineral resources of land that is the subject of a mining lease application is "required information" under s 51(5). The fact that an element of "required particulars" was not provided in Martin did not invalidate the application as "the analysis in Project Blue Sky requires the conclusion that the deficiencies, if any, did not invalidate the application or the licence" (also at [42]).
10. In Martin at [43], the Court of Appeal also made reference to s 135 of the Mining Act. The Court identified that section as being a further demonstration "that Parliament did not intend to invalidate exploration licences granted on defective applications" (at [44]).
11. Gold & Copper sought to distinguish the decision of the Court of Appeal in Martin on two bases. The first was factual and the second was the deeming provision of cl 76(9) of the Regulation, a provision that was not found in the applicable regulation when the exploration licence application considered in Martin was made.
12. The factual difference relied upon by Gold & Copper is that, in Martin, some financial information had been supplied albeit its content did not include that which was identified as being necessary in the approved form of exploration licence application. In the present case, there was an absence of any information directed to the mineral bearing capacity of the land. Thus, the distinction sought to be drawn is between a circumstance where incomplete information has been supplied and one where no information has been supplied in response to the statutory requirement for "information".
13. I do not accept that such a distinction can be drawn. The principles articulated in Martin apply equally to either circumstance. Both result in an application that is defective. In either circumstance, there would be a failure to supply information required by the statute. However, as the Court of Appeal observed in Martin at [31], s 13(2) of the Mining Act did not impose "an essential condition for the validity of an application, to be determined by a court".
14. The discretionary nature of the judgment to be made by the decision-maker is further reinforced by the provisions of s 54, entitling the decision-maker to require the applicant for a mining lease "to furnish further information in connection with the application". That entitlement must surely apply whether such information accompanying the application is considered not to fully address a relevant topic or whether there has been a failure to address a topic that is seen by the decision-maker to be relevant to the determination of the application being made.
15. I have already addressed the manner in which cl 76(9) should be construed in the context of cl 76 as a whole. However, assuming it to be construed so that the application lodged by Cadia was defective for the reasons alleged by Gold & Copper, I cannot accept that ML 1689 and ML 1690 are invalid on that account. That clause of the Regulation provides an unsound basis on which to conclude that its purpose was to reverse the effect of the provisions of the Mining Act itself in respect of a lease granted following an application that is defective. A provision of the Regulation claiming to have such a profound effect would require expression in far clearer terms than those in which cl 76(9) are presently expressed.
16. The challenge by Gold & Copper to the validity of ML 1689 and ML 1690 on the basis that the founding mining lease applications were deemed to be refused by operation of cl 76(9) of the Regulation has not been made out.

Issue 3: The decision to grant ML 1689 and ML 1690 was manifestly unreasonable

The submission of Gold & Copper

1. The Minister's decisions to grant ML 1689 and ML 1690 were unreasonable because the "required information" directed to the mineral bearing capacity of the lands over which MLA 439 and MLA 440 were made, as well as other information required by the prescribed form pursuant to s 382 were not provided to the Minister. Although the written submission of Gold & Copper was so framed, its submission otherwise was directed to the absence of information directed to the mineral bearing capacity of the lands in question.
2. Reliance is placed upon the provisions of s 68(3) of the Mining Act which relevantly provides: "(3) A mining lease may be granted over the surface of land, over the surface of land and the subsoil below the surface, over the surface of land and the subsoil down to a specified depth below the surface or over the subsoil between or below any specified depth or depths below the surface of land."
3. The maps attached to each of ML 1689 and ML 1690 indicate that the leases were granted to an unlimited depth. That had the consequence that the land for which each mining lease was granted was sterilised from any exploration for the term of the lease. The grant of a lease having that effect was contrary to the object expressed in s 3A of the Mining Act.
4. The Minister, acting reasonably, could not have granted a mining lease to an unlimited depth without knowing the mineral bearing capacity of the land. It is accepted that no such assessment accompanied the mining lease applications; it was notorious that the Cadia Valley was extensively covered with mining leases for minerals and the Minister was aware of the potential for each area of land that was the subject of the mining lease applications to be mineral bearing, having regard to ELA 4201 and ELA 4403 lodged by Gold & Copper.
5. In those circumstances, the decision of the Minister to grant the Mining Leases was contrary to the Act and unreasonable in the sense identified both in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 and in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. There is a lack of plausible justification in granting a mining lease when the decision-maker, in this case the Minister, did not have before him any information as to the mineral bearing capacity of the lands that were the subject of each mining lease application.

Submissions of the respondents

1. The Minister submitted that the mineral bearing capacity of an area of land that was the subject of a mining lease application is irrelevant when the application made is for mining purposes only. As a consequence, it was not manifestly unreasonable for the Minister to have granted the Mining Leases.
2. The circumstance that the leases were granted to an unlimited depth is also irrelevant to this ground of challenge. As s 73(1A) of the Mining Act authorised the carrying out of those mining purposes that were specified, no restriction on depth was required because those purposes involved only use of the surface and such depth beneath the surface as was necessary to give effect to that purpose and then only for the term of the lease.
3. Cadia submits that, having regard to the authorities addressed in dealing with Issue 2, it was clearly a matter for the Minister as to whether there was sufficient information available to enable him to make a decision on the application. The requirements prescribed by the Act for an application should not be conflated with the scope of the Minister's power under s 63 of the Mining Act when considering and then determining an application for a mining lease. The reasons expressed by the Minister do not manifest irrationality and satisfy "the extremely high threshold for manifest unreasonableness" laid down by authority. The high threshold has been identified in various formulations collected in Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; 174 LGERA 67 at [104] - [109]. That high threshold was not lowered by the High Court in Minister for Immigration and Citizenship v Li (see, in particular, Gageler J at [113]).
4. The mining purposes sought in each mining lease application were associated with the large and long standing mining operations in the Cadia Valley, particularly those operations being conducted under existing mining leases in the vicinity of the lands for which MLA 439 and MLA 440 were made. In this context, the Minister was evidently satisfied for the purpose of s 63(5) that the mining purpose leases were sought in the immediate vicinity of those mining leases that had been granted for the mining of minerals. The nature and extent of the operations conducted in the Cadia Valley could hardly have led to a different result. The information known to the Minister included the fact that mining operations were being conducted pursuant to the Project Approval granted under Pt 3A of the EPA Act, with the term of the mining purposes leases granted by him consistent with both the period during which that approval operated to sanction mining, together with the extended period that the approval allowed for rehabilitation.
5. Given the large and established nature of the Cadia Valley Operations, it was reasonably open to the Minister to conclude that the grant of the mining purposes leases sought in MLA 439 and MLA 440 was consistent with the objects of the Mining Act. Information as to the mineralisation specific to the areas sought in those mining lease applications was unnecessary to reach the conclusion that he did.
6. Moreover, it was not unreasonable for the Minister, in exercising the discretion available to him under s 68(3), to conclude that the mining lease applications be granted without limitation as to depth. Where the mining purposes proposed to be carried out involved both dam extension and provision of tailings facilities, it was not unreasonable for the Minister to conclude that there should be no depth restriction, given the possibility that future undermining of the land upon which these purposes were to be carried out may have implications for the stability of the surface works proposed.
7. The fact that Gold & Copper had made application for exploration licences over land that included land that was the subject of MLA 439 and MLA 440 did not properly infer, as Gold & Copper submitted, that exploration licence applications identified potential mineral bearing capacity in the lease application lands. Applications for exploration licences such as ELA 4201 and ELA 4403, made in respect of broad areas of land, did not indicate or even infer that particular land areas encompassed by the large areas included in such applications have mineral bearing capacity "except perhaps in the most speculative sense".
8. It is not correct to contend that the grant of the Mining Leases sterilised the land to which they related from any exploration. Both the term of those leases and the provisions of the Mining Act are inconsistent with the submission that the relevant lands were sterilised.
9. The Project Approval granted under Pt 3A of the EPA Act for the Cadia East Project was a transitional Pt 3A project within the meaning of cl 2 in Schedule 6A to the EPA Act. By operation of cl 3 of Schedule 6A, Pt 3A (as in force immediately before the Part was repealed) continues to apply in respect of the Project Approval. Section 75V found in Pt 3A relevantly provides: "75V Approvals etc legislation that must be applied consistently (1) An authorisation of the following kind cannot be refused if it is necessary for carrying out an approved project and is to be substantially consistent with the approval under this Part: … (c) a mining lease under the Mining Act 1992, …".
10. The Cadia East Project Approval contemplates the carrying out of mining purposes on land to which ML 1689 and ML 1690 apply. As a consequence, the Minister was obliged by s 75V(1)(c) to grant the Mining Leases for mining purposes on the basis that such leases were "necessary for carrying out" the activities authorised under the Cadia East Project Approval and were "substantially consistent" with that approval.
11. Alternatively, it is submitted that even if the decision was demonstrated to be manifestly unreasonable, the Court should, in the exercise of its discretion, refuse relief on this ground as the provisions of s 75V(1)(c) of the EPA Act would require the Minister to make the same decision as he had earlier done in response to MLA 439 and MLA 440. There would be no utility in granting the relief sought.

Consideration

1. The submissions of the respondents, as articulated by Cadia, should be sustained. The decision of the Minister to grant the Mining Leases has not been shown to be so unreasonable that judicial intervention is justified.
2. The submission of Gold & Copper on this ground was not fully developed by reference to the principles discussed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation and Minister for Immigration and Citizenship v Li.
3. As all three judgments delivered in Li indicate, when a discretionary power is conferred by statute upon an administrative decision-maker, the legislature is taken to intend that the power be exercised reasonably. However, judging "reasonableness" for the purpose of determining whether an administrative decision-maker has acted so unreasonably as to attract judicial intervention raises important considerations. On that topic, Gageler J observed in Li at [105]: "Review by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process' but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law' [citation of authority omitted]".
4. His Honour also observed at [108] that there are two "principal considerations" constraining judicial determination of Wednesbury unreasonableness. The first is what his Honour described as the "stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power". The second consideration identified by his Honour was the practical difficulty for a court determining that the test is met where the repository of power is an administrator and "the exercise of the power is legitimately informed by considerations of policy". The stringency of that test as articulated by him, remains (at [113]).
5. For the reasons earlier summarised from the submissions of Cadia, it seems to me that the decision made by the Minister to grant the Mining Leases was a decision made "within a range of possible, acceptable outcomes" that are defensible both by reference to the surrounding facts and to the law. When determining MLA 439 and MLA 440, the Minister was not bound to ignore the context of a substantial mining operation conducted in the Cadia Valley in which mining for minerals was being conducted under a number of mining leases that had already been granted and that there was a need for land in close proximity upon which associated mining purposes could be conducted. Nor was the Minister bound to ignore the need for expansion of existing dams and tailings facilities necessary to implement the expanded mining project that was the subject of the Planning Minister's Project Approval. The Minister's Statement of Reasons recognised the operation of the Pt 3A approval as pertaining to Cadia Valley Operations.
6. Further, no provision of the Mining Act compelled the result of either mining lease application, dependent upon the nature or extent of mineral deposits in the lands that were the subject of each application. Even if the land the subject of each application was shown to have had a mineral bearing capacity and the extent of mineral deposits described for each area of land, nothing in s 63 of the Mining Act required that the applications, on that account, be refused. By granting the leases conformably with the discretion available to him under s 63(1), it was open to the Minister to conclude that in so doing his actions were consistent with the objects of the Act in that the mining leases granted did "facilitate … development of mineral resources" in this State (s 3A).
7. Contrary to the submission of Gold & Copper, the grant of the Mining Leases did not operate to "sterilise" the lands that were the subject of those leases from mineral exploration. At the expiration of the term of each lease, namely 21 years, exploration of those lands would be available. However, of more significance is the circumstance that during the currency of the leases the possibility of mineral exploration remained.
8. Section 19(3) of the Mining Act enables an exploration licence to be granted over an area that is the subject of an existing mining lease where the holder of that lease consents. Subsection (4) of s 19 contemplates the coexistence of a mining lease and an exploration licence where the Minister determines that the coexistence does not render impracticable the exercise of the respective rights of the holder of each form of authority. Indeed, the Ministerial Letter attached to the Minister's Statement of Reason for granting ML 1689 and ML 1690 not only identified the existing exploration licences held by Newcrest and Climax but also stated that by granting a lease for mining purposes only, those companies could "carry out prospecting required in the area of the mining lease for a purpose".
9. These reasons, coupled with those that I have summarised from the submissions of Cadia, cause me to reject the ground of challenge advanced by Gold & Copper, contending that the Minister's decision to grant ML 1689 and ML 1690 was manifestly unreasonable. In light of my conclusion, it becomes unnecessary to consider whether, if I was otherwise satisfied that this ground had been made out, no order should be made by reason of the provisions of s 75V(1)(c) of the EPA Act.

Conclusion and Orders

1. Gold & Copper has failed on each of the three grounds of challenge to the validity of ML 1689 and ML 1690. The proceedings should therefore be dismissed.
2. The proceedings have been brought in Class 8 of the Court's jurisdiction. The usual order for costs therefore applies, that is, Gold & Copper should be ordered to pay the costs of the Minister and Cadia (s 98 of the Civil Procedure Act 2005 (NSW) and UCPR Pt 42 r 42.1). There is nothing before me at present to indicate that the usual order should not apply and I propose to make an order accordingly. However, as I have not heard argument on the question, should a different order be sought, the party seeking that order should make application in that regard by 31 July 2015.
3. The orders that I make are as follows: 1. Proceedings dismissed. 2. The applicant must pay the costs of the respondents unless by 4pm on 31 July 2015 any party notifies my associate and the other parties that it or he wishes to seek a different order for costs. 3. Exhibits may be returned.

Amendments 21 July 2015 - Pars 36, 39, 40-42, 65, 105 and 145 - indents amended 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 July 2015