Gold & Copper Resources Pty Ltd v Minister for Resources & Energy & Anor

Judgment 1HIS HONOUR: In these proceedings the applicant, Gold and Copper Resources Pty Ltd ("Gold and Copper") sought declarations that two mining leases granted, or purportedly granted, by the first respondent ("the Minister") to the second respondent, Cadia Holdings Pty Ltd ("Cadia") in October 2000 and March 2001 are void. It sought injunctions restraining Cadia from conducting further activities under the purported authority of the two mining leases, or alternatively from conducting mining under purported authority of the mining leases, or any activity for mining purposes under purported authority of the mining leases except for activities carried out in accordance with a development consent called the Ridgway Consent. 2Gold and Copper commenced the proceedings on 13 November 2012. Its claim as originally formulated was that the grant of the mining leases was made in breach of s 65(2) of the Mining Act 1992 (NSW) which prohibited the Minister from granting a mining lease unless "an appropriate development consent" was in force in respect of the land. Gold and Copper contended that the Ridgway Consent was not an appropriate development consent. 3On 13 November 2013 s 65 of the Mining Act was amended by the Mining Amendment Development Consent Act 2013 (NSW). The media release of the Minister stated: "The NSW Government moved to eliminate any possible ambiguity about the integrity of mining titles after Gold and Copper Resources pursued court action against Newcrest's Cadia mine in Orange. The Government has legal advice that an adverse decision in this court case could jeopardise existing mining operations State-wide." It is clear that the amending legislation was a response to Gold and Copper's claim. 4Following the passing of that legislation Gold and Copper sought to amend its Points of Claim. This was also in response to the Minister's application that the proceeding be summarily dismissed. 5Gold and Copper's proposed amendments seeking to maintain a claim of invalidity based on a breach of s 65 as it formerly stood was rejected by Craig J on 9 April 2014 (Gold and Copper Resources Pty Limited v Minister for Resources and Energy [2014] NSWLEC 33). His Honour gave leave to Gold and Copper to amend its Points of Claim in other respects which were not opposed. As amended the grounds of challenge can be summarised as being based on grounds that: a) the mining leases were granted based on applications that had not been duly completed; b) the Minister failed to take into account relevant considerations; and c) the decisions to grant the mining leases were manifestly unreasonable. 6On 9 April 2014 these proceedings were listed for hearing on 9 and 10 October. Orders were made for the provision of a tender bundle, opening submissions and related requirements. Gold and Copper was in default of those orders. It also defaulted in the provision of a tranche of security for costs that was due 21 days before the hearing date. 7On 1 October 2014 Gold and Copper filed a Notice of Motion. The Notice of Motion as filed sought: "Leave be granted to the applicant to discontinue the proceedings. Each party pay their [sic] own costs of the proceedings." 8Gold and Copper has modified its position in relation to costs. It contended that leave to discontinue should be given on terms that each party be ordered to bear its and his own costs up to 15 April 2014, and that it pay the respondents' costs from that date up to 24 September 2014. The date of 15 April 2014 was the date on which Gold and Copper filed its Amended Points of Claim. It submitted that there should be no order as to the costs of the proceedings before that date because it was the enactment of the Mining Amendment Development Consent Act on 13 November 2013 that defeated its claim as originally formulated that the mining leases were issued in breach of s 65. This was a supervening event that justified a contrary order pursuant to UCPR, r 42.19(2). 9Gold and Copper also submitted that it should not be required to pay the respondents' costs beyond the date on which it sought their consent to its discontinuing the proceedings which was 24 September 2014, albeit that it then offered to discontinue on the basis that each party bear his or its costs of the whole of the proceedings. 10Gold and Copper's Notice of motion was listed for hearing on the same day as the substantive hearing was listed to commence. Yesterday I refused Gold and Copper leave to discontinue on the terms that it sought. Instead, I gave it leave to discontinue, but only on terms substantially as sought by Cadia. This included a term precluding Gold and Copper from commencing further proceedings against the respondents on the same cause or causes of action as those pleaded in the amended points of claim. I also imposed terms as to costs on which leave to discontinue was given that would require Gold and Copper to pay the respondents' costs from 8 July 2014 on the indemnity basis. This was on the basis of offers of compromise to which I will refer later. I also directed that it be a term as to costs of the leave to discontinue that Gold and Copper pay costs incurred before 8 July 2014 on the ordinary basis, except for costs which related only to the applicant's challenge based on s 65 of the Mining Act in respect of which no order as to costs would be made. 11The orders I made were as follows: "(1) Order that the applicant have leave to discontinue these proceedings on terms that: (a) The applicant undertakes to the Court to file a notice of discontinuance by 10 October 2014. (b) The applicant may not commence further proceedings against the respondents, or either of them, on the same cause of action or causes of action pleaded in the amended points of claim. (c) Subject to para (d), the applicant pay the respondent's costs on the ordinary basis up to and including 8 July 2014, and on the indemnity basis from 8 July 2014. (d) The costs payable pursuant to order (1)(c) do not include costs incurred by the respondents that relate only to the applicant's ground of challenge based on s 65(2) of the Mining Act, in relation to which each party is to bear its and his own costs. (e) For the avoidance of doubt, the costs referred to in order (1)(d) that are excluded from order (1)(c) do not include: (i) Costs incurred in connection with matters relevant to defences to the amended points of claim, irrespective of the stage of the proceedings at which such costs were incurred; or (ii) Costs incurred in relation to the first respondent's notice of motion dated 21 November 2013. (2) That the terms as to costs in order (1)(c), (d) and (e), being terms of the grant of leave to discontinue, have effect as orders as to costs on the filing of the notice of discontinuance. (3) Otherwise order that the applicant's notice of motion dated 1 October 2014 be dismissed with costs." 12Gold and Copper was not prepared to discontinue on those terms. It did not proffer the undertaking the subject of order 1(a). 13The matter having been fixed for hearing proceeded, Gold and Copper did not seek an adjournment. I doubt that I would have been minded to grant one had such an application been made. It took no further part in the hearing. It did not seek to be heard in opposition to the respondents' contention that the proceedings should be dismissed, nor to be heard as to whether it could be a term of the order for dismissal that it not bring fresh proceedings, nor as to costs. During the course of submissions Gold and Copper had made it clear through its counsel that if leave to discontinue were given on terms that it did not accept it would nonetheless not further participate in the hearing. It frankly acknowledged that in those circumstances the proceedings would be dismissed. However, I received some submissions in relation to the effect of s 91 of the Civil Procedure Act 2005 (NSW) which deals, amongst other things, with terms on which an order for dismissal might be made. 14I heard further argument on costs from counsel for the respondents. They sought an order that their costs be paid on the ordinary basis up to 8 July 2014 and thereafter on the indemnity basis without any carve-out for costs relating to the s 65 matter. Cadia sought an order pursuant to s 91(1) of the Civil Procedure Act that Gold and Copper be precluded from bringing a fresh proceeding on the same cause or causes of action. I indicated that I would make such an order. 15These are my reasons for the orders made and foreshadowed yesterday and for my decision as to what costs orders should be made in respect of the proceedings.