Hot Holdings Pty Ltd v Creasy

High Court of Australia|1992-10-15|Before: Brennan CJ, Gummow JJ, Malcolm CJ, Nicholson JJ, Rowland J

High Court of Australia Brennan CJ Dawson(2), Toohey(2), Gaudron(1) and Gummow(1) JJ Hot Holdings Pty Ltd v Creasy (Matter No P12 of 1995Matter No P13 of 1995F.C. 96/004) [1996] HCA 44

Prerogative writs - certiorari - availability of certiorari - preliminary or recommendatory decisions - decision by warden to conduct ballot to determine priority under Mining Act 1978 WA - discernible or apparent legal effect - whether preliminary decision a mandatory relevant consideration for final decision-maker

Mining Act 1978 WA - ss 57, 58, 59, 71, 74, 75 and 105A.

2 Declare that certiorari lies to challenge a decision by a warden to priority under s 105A of the Mining Act 1978 WA.

3 Set aside paragraph 1 of the order of the Full Court of the Supreme Court of Western Australia in matter number CIV 1634 of 1993.

4 Remit the matter to the Full Court of the Supreme Court of Western Australia to consider whether certiorari should issue.

5 The second respondents pay the costs of the appellant and of the first respondents.

2 Declare that certiorari lies to challenge a decision by a warden to conduct a ballot for the purposes of determining the party entitled to priority under s 105A of the Mining Act 1978 WA.

3 Set aside paragraph 1 of the order of the Full Court of the Supreme Court of Western Australia in matter number CIV 1931 of 1993.

4 Remit the matter to the Full Court of the Supreme Court of Western Australia to consider whether certiorari should issue.

5 The third respondents pay the costs of the appellant and of the first respondent.

6 No order made with respect to the costs of the second respondents.

These appeals (Nos P12 of 1995 and P13 of 1995) were heard together. They are brought from the Full Court of the Supreme Court of Western Australia (Malcolm CJ, Rowland and Nicholson JJ) and involve consideration of various provisions of the Mining Act 1978 WA (the Act). The particular question for decision is whether certiorari lies to challenge a decision by a warden to conduct a ballot to determine which of several applicants for a mining tenement is to receive the priority right spoken of in s 105A of the Act.

The facts may be shortly summarised. In late 1992 it became known that 15 square kilometres of land in the East Murchison Mineral Field, land which had been subject to a mining tenement, was about to be released from it. That land became available for mining or exploration on 15 October 1992. On the morning of 15 October, a number of people gathered outside the doors of the Leonora Registry of the Department of Minerals and Energy. The doors of the Registry were opened at 8.30 am.

Upon the opening of the Registry, there occurred what was described by Rowland J in the Full Court as "a rather unseemly rush". In the event, some eight applications for an exploration licence were lodged within 51 seconds. Five of the applications were lodged by one party. Each of those applications related to substantially the same ground. Some subsequent applications were made but only one of those later applicants continues to press any claim. In addition, there were two applicants for mining leases, one of which remains presently relevant.

Those who continue to maintain a claim in respect of the land, or part of it, and thereby have become parties to the present litigation, are as follows:

(1) Robert Wilmot Creasy ("Mr R W Creasy"), the second-named first respondent in Matter No P12 of 1995, marked out a mining lease over a previously surveyed area of 480 hectares at 8.30.03 am on 15 October 1992 and this became the subject of application for mining lease 36/249.

(2) Hot Holdings Pty Ltd ("Hot Holdings"), the appellant in Matter No P12 of 1995 and the first respondent in Matter No P13 of 1995, lodged its application for an exploration licence at 8.30.14 am.

(3) Mark Gareth Creasy ("Mr M G Creasy"), the first-named first respondent in Matter No P12 of 1995 and the appellant in Matter No P13 of 1995, lodged five applications for exploration licences at 8.30.17 am, 8.30.33 am, 8.30.36 am, 8.30.51 am, and 8.30.51 am respectively.

(4) Minerichie Investments Pty Ltd ("Minerichie"), the first-named second respondent in Matter No P12 of 1995 and the first-named third respondent in Matter No P13 of 1995, lodged an application for an exploration licence at 8.30.19 am.

(5) Tromen Pty Ltd ("Tromen"), the second-named second respondent in Matter No P12 of 1995 and the second-named third respondent in Matter No P13 of 1995, lodged an application for an exploration licence at 8.30.24 am.

(6) Arimco Mining Pty Ltd and Oresearch NL ("Arimco and Oresearch"), the second respondents in Matter No P13 of 1995, on 2 November 1992 lodged application E36/227 for an exploration licence.

It is necessary to set out provisions in the Act as they stood when the applications for exploration licences (ss 57, 58 and 59) and mining leases (ss 71, 74 and 75) were made:

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

(3) The warden shall not recommend the grant of an exploration licence under this section unless he is satisfied that the applicant is able to effectively explore the land in respect of which the application has been made.

(b) shall be accompanied by a statement specifying -

(i) the proposed method of exploration of the area in respect of which the licence is sought.

(ii) the details of the programme of work proposed to be carried out in such area;

(iii) the estimated amount of money proposed to be expended on the exploration; and

(iv) the technical and financial resources available to the applicant;

(c) shall be accompanied by the amount of the prescribed rent for the first year of the term of the licence or portion thereof as prescribed;

(d) shall be lodged with the mining registrar of the mineral field or the district thereof wherein the land to which the application relates is situated; and

(e) shall be accompanied by the prescribed application fee.

(1) An application for an exploration licence shall be heard by the warden in open court on a day appointed by him and any person is entitled to object to the granting of the application.

(2) A person who desires to object to the granting of the application shall lodge at the office of the mining registrar within the prescribed time and in the prescribed manner a notice of objection and he may be heard by the warden in opposition to the granting of the application.

(3) The warden shall as soon as practicable after the hearing of the application, transmit to the Minister for his consideration the notes of evidence and any maps or other documents referred to therein, and his report recommending the granting or refusal of the exploration licence and setting out the warden's reasons for his recommendation.

(4) On receipt of notes of evidence and any maps or documents transmitted to him pursuant to subsection (3), the Minister may grant or refuse the exploration licence as he determines, and whether the warden recommends the granting of the licence or the refusal thereof.

The provisions relating to applications for mining leases are as follows:

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

(b) shall be accompanied by the amount of the prescribed rent for the first year of the term of the lease or portion thereof as prescribed;

(d) shall be lodged with the mining registrar of the mineral field or the district thereof wherein the land to which the application relates is.

(1) An application for a mining lease shall be heard by the warden in open court on any day appointed by him that is at least 30 days after the receipt of the application.

(2) A person who desires to object to the granting of the application shall lodge at the office of the mining registrar a notice of objection within the prescribed time and in the prescribed manner and is entitled to be heard by the warden in opposition to the grant of the application.

(3) The warden shall as soon as practicable after the hearing of the application transmit to the Minister for his consideration the notes of evidence and any maps or other documents referred to therein and his report recommending the granting or refusal of the mining lease and setting out the warden's reasons for his recommendation.

(4) On receipt of notes of evidence and any maps or documents transmitted to him pursuant to subsection (3), the Minister may, subject to subsection (5), grant or refuse the mining lease as he thinks fit, and whether or not -

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

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

Pursuant to s 59 and s 75 of the Act, each of the applications was heard before Warden P G Malone SM, sitting as Warden of the East Murchison Mineral Field at Leonora in March 1993. On 2 June 1993, he delivered what were fashioned as "REASONS FOR DECISION". These reasons run to some 93 pages. They encompass a large number and range of complicated conclusions. For present purposes, the important passage appears at page 83. It reads:

I conclude that the five applicants (numbered (1) to (5) above) associated with the applications complied with the initial requirement at the same time and accordingly that it is appropriate to conduct a ballot to determine priority. The remaining applicant, numbered (6) above, was dealt with as follows: Having recommended a number of competing applications for approval and provided that a ballot be held to determine priority I recommend Application E36/227 for refusal on the ground that there would be no ground available once the competing application that has priority is granted. The warden directed that a ballot should be held on 29 June 1993 to resolve who had priority for the purposes of s 105A of the Act. At the relevant time, s 105A was as follows:

(1) Subject to section 111A, where more than one application is received for a mining tenement (other than a miscellaneous licence) in respect of the same land or any part thereof, the applicant who first complies with the initial requirement in relation to his application has, subject to this Act, the right in priority over every other applicant to have granted to him in respect of that land or part the mining tenement to which his application relates.

(2) In subsection (3) "applicant" means an applicant for a prospecting licence, exploration licence, mining lease or general purpose lease.

(3) Where in respect of any land the warden is satisfied that 2 or more applicants complied with the initial requirement in relation to their applications at the same time, priority shall, unless written agreement is concluded by the applicants and lodged with the mining registrar within the prescribed time, be determined by ballot conducted by the warden in open court on a date to be determined by the warden and notified to the applicants.

(4) In this section a reference to compliance with the initial requirement in relation to an application is a reference -

(a) in the case of an application for an exploration licence, to lodging that application with the mining registrar;

(b) in the case of an application for a prospecting licence, mining lease or general purpose lease, to marking out the land concerned in the prescribed manner.

Section 147 confers a right of appeal from a warden's court to the Supreme Court. But this is expressed to be subject to s 151. This states that there shall be no right of appeal in respect of any decision, order or recommendation of the warden or of the Minister upon any application for a mining tenement. Accordingly, those parties unhappy with the warden's "decision" to hold a ballot to determine priority sought prerogative relief in the Supreme Court. It appears that a ballot has not yet been held and that the warden has not reported to the Minister in accordance with the Act.

The hearing in the Full Court was upon the return of four orders nisi for certiorari which were directed to be heard together before the Full Court. Each order nisi was made in favour of an applicant for a mining tenement. Hot Holdings obtained an order nisi "to remove into (the Supreme Court) for the purpose of being quashed the decision made (by the Warden) on the 2nd day of June 1993 in respect of an application for Exploration Licence 36/215 that HOT HOLDINGS PTY LTD should take part in a ballot with 4 other applicants".

Two other applicants for prerogative relief, Mr R W Creasy and Mr G Creasy, obtained orders nisi to similar effect. They sought to have the decision of the warden that each applicant should take part in a ballot with four others removed into the Supreme Court for the purpose of being quashed.

The fourth order nisi was in a different form. Arimco and Oresearch obtained an order nisi on 27 July 1993 "to remove into (the Supreme Court) for the purpose of being quashed the decision made on 2nd day of June 1993 whereby the Warden recommended each Application for approval except application for exploration licence 36/227".

Minerichie and Tromen, both of which had their applications recommended for approval and included in the ballot, appeared before the warden as objectors to other applications and appeared before the Supreme Court. They did not seek prerogative relief, but made submissions on matters of law arising out of the various applications.

The Full Court discharged each order nisi on 21 October 1994. This result was reached by answering adversely to the applicants for prerogative relief the threshold question as to the availability of certiorari to quash the decision of the warden.

On 5 May 1995, this Court granted special leave to appeal to the applicant in each matter on a limited basis. Special leave was "limited to the issue whether certiorari lies to challenge a decision by a warden to conduct a ballot for the purposes of determining the party entitled to the priority right conferred by s 105A(1) of the Mining Act 1978 WA ".

In this Court the submissions of Hot Holdings and Mr M G Creasy attacked the decision of the Supreme Court. Minerichie and Tromen were the main contradictors, arguing, in line with the conclusion of the Supreme Court, against the availability of certiorari. Arimco and Oresearch were concerned, not so much with the warden's decision to hold a ballot as with the nature of the priority right conferred by s 105A(1) and the nature of the Minister's discretion to grant mining tenements.

The submissions against the availability of certiorari were in conformity with the reasoning in the Supreme Court. It was contended that the "decision" of the warden does not have a sufficiently immediate impact upon the rights of the applicants to satisfy the requirements of certiorari. A subsidiary submission was made to the effect that there is no "decision" to hold a ballot under s 105A. Rather, once the warden is satisfied of initial compliance at the same time, a ballot follows automatically by force of the Act.

As we have outlined, the issue in this appeal is whether the decision of the warden under the Act is one which is amenable to certiorari. The resolution of this issue involves a consideration of the proper scope of certiorari, and it raises questions of statutory construction of the Act and the scheme it establishes for handling mining tenement applications.

It once was customary, at least in England, to begin any consideration of the scope of certiorari with reference to the dictum of Atkin LJ in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) [1] that certiorari lies against a decision which is of such a nature as "to determine questions affecting the rights of subjects". Professor Sir William Wade dubbed this passage in Atkin LJ's judgment "(c)anonical". [2] However, it is important also to bear in mind that the scope of certiorari has developed from time to time to meet changing conditions. [3]

(1924) 1 KB 171 at 205. 2. Wade and Forsyth, Administrative Law, 7th ed (1994) at 630. 3. R v Criminal Injuries Compensation Board; Ex parte Lain (1967) 2 QB 864 at 882 per Lord Parker CJ.

The proposition that certiorari will lie only in respect of a decision which determines questions affecting rights has led to a number of cases, of which the present is one, where the contention has been that the decision in issue is merely advisory, provides a recommendation, or is made at a preliminary stage of a decision-making process.

Consideration of the requirement for certiorari that the impugned decision determines questions affecting rights, on occasion has been confused with a distinct body of principle. This concerns the existence of a requirement of procedural fairness. The conceptual distinction is neatly illustrated by the decision of this Court in Ainsworth v Criminal Justice Commission . [4] In that case it was held that there had been a failure to observe the requirements of procedural fairness but, nevertheless, certiorari did not lie because no legal effect or consequence attached to the report in question.

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564.

In Ainsworth the Court reiterated the function of certiorari. In the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ [5] it was said:

The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. Brennan J spoke to similar effect as follows: [6] Quashing annihilates the legal effect of an act or decision that has been reached in breach of a condition of its validity but, if an act or decision has no legal effect, there is nothing to quash. 1. Ainsworth [1992] HCA 10; (1992) 175 CLR 564 at 580. 2. Ainsworth [1992] HCA 10; (1992) 175 CLR 564 at 595.

Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.

This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue:

(1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently "affects rights" in a legal sense;

(2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently "determines" or is connected with that decision.

The form in which a decision-making structure is established may be likely to indicate the nature of the function exercised at each stage within that structure. Nevertheless, the difference between the two situations outlined above is one of substance as well as form. In the second situation, the question becomes whether the stage of the process under challenge has the necessary effect on the final or ultimate decision. The present appeals involve a case of that nature.

The distinction between the two situations we have described may be highlighted by reference to a passage in the joint judgment in Ainsworth. There, that which was sought to be quashed was a report prepared by the Queensland Criminal Justice Commission tabled in Parliament pursuant to the Criminal Justice Act 1989 Q. Their Honours said: [7]

The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. It is different when a report or recommendation operates as a precondition or as a bar to a course of action, [8] or as a step in a process capable of altering rights, interests or liabilities. [9] Ainsworth is an example of the first typical situation which we have outlined above. The report which it was sought to quash had been produced pursuant to s 2.14(2)(c) of the Criminal Justice Act. This section provided for the Commission to report to the Parliamentary Committee: when the Commission thinks it appropriate to do so with respect to that matter, in relation to any matter that concerns the administration of criminal justice. In the joint judgment, their Honours noted that: [10] the report was the final step in the discharge by the Commission of the functions and responsibilities which were brought into play by its decision to investigate and report. In refusing certiorari, they said: [11] The report may bear upon the appellants' prospects of obtaining licences under the Gaming Machine Act 1991 Q for that Act, in s 3.3(1)(b)(ii) and (iii), makes reputation a matter to be taken into account in determining whether a licence should be granted. However, like the report considered in R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd , [12] the report does not "legally affect rights", for it may be that the appellants will be granted such licence or licences under the Gaming Machine Act 1991 as they request "even in direct opposition to any recommendations (made) in it" [13] by the Commission. There being no legal effect or consequence attaching to the report, certiorari does not lie to correct the failure of the Commission to comply with its duty to proceed in a way that was fair to the appellants. 1. Ainsworth [1992] HCA 10; (1992) 175 CLR 564 at 580. 2. See, eg, Brettingham-Moore v St Leonards Municipality [1969] HCA 40; (1969) 121 CLR 509 esp at 525 per Barwick CJ; Ex parte Lain (1967) 2 QB 864. 3. See Ex parte Lain (1967) 2 QB 864 at 884 per Diplock LJ, 881 per Lord Parker CJ; see also Testro Bros Pty Ltd v Tait [1963] HCA 29; [1963] HCA 29; (1963) 109 CLR 353 at 366-367 per Kitto J, 373-374 per Menzies J. 4. Ainsworth [1992] HCA 10; (1992) 175 CLR 564 at 578; see also at 595 per Brennan J who agreed on this point. 5. Ainsworth [1992] HCA 10; (1992) 175 CLR 564 at 580-581. 6. R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471; 8 ALR 691. 7. R v Collins (1976) 50 ALJR 471; 8 ALR 691 at 475; at 699.

The reference in that passage to ACTU-Solo Enterprises identifies that case as one conforming to the first type of situation. The applicant in ACTU-Solo Enterprises sought an order nisi for certiorari to quash, on various grounds, the report of a Royal Commission. The Royal Commission had been appointed to inquire into the production by refining, the marketing, and the pricing in Australia of petroleum products. Stephen J noted: [14]

It is, of course, central to this application that what the applicant seeks is the quashing of a report of a Royal Commission, seeking to employ for that purpose a remedy by way of certiorari. His Honour examined the nature of the reporting function of Royal Commissions and concluded: [15] The instant Royal Commission is just such a mere commission of inquiry and report, its compulsive powers it derives from Commonwealth statute law, and they are not under challenge. The reported conclusions of the Commission no doubt serve to inform the mind of government and may in consequence to a greater or lesser extent be instrumental in shaping the course of future legislative or executive initiatives, but they neither directly determine, or of their own force affect, rights nor does the reporting of particular conclusions satisfy some condition precedent to the exercise of power which will in turn affect rights or otherwise give rise to legal consequences. 1. R v Collins (1976) 50 ALJR 471; 8 ALR 691 at 472 at 694. 2. R v Collins (1976) 50 ALJR 471; 8 ALR 691 at 473 at 695.

The juxtaposition of requirements for certiorari presented at the end of that passage reflects the different emphasis of inquiry in each situation we have identified, namely, that the conclusions of the Commission are tested to determine whether they either (1) "directly determine, or of their own force affect, rights" or (2) "satisfy some condition precedent to the exercise of power which will in turn affect rights or otherwise give rise to legal consequences". The report of the Royal Commission in that case, as the end or peak of a prescribed decision-making structure, had to determine of its own force some legal right of the applicant before certiorari could lie. Stephen J concluded that this requirement was not satisfied: [16]

Whatever may be the tenor of the Commission's report, it will not legally affect the rights of the applicant; with or without such a report, and even, no doubt, in direct opposition to any recommendations in it, the Minister might, in his absolute discretion, take action affecting the applicant's crude oil entitlements, or might decide to take no action at all. Accordingly the nature of the Commission's report neither directly affects nor in any way subjects to a new hazard the rights of the applicant; the hazard of Ministerial intervention has always been present and it is only the degree of likelihood of that intervention occurring in a sense adverse to the applicant's interests which is increased by the actual nature of the Commission's recommendation. 1. R v Collins (1976) 50 ALJR 471; 8 ALR 691 at 475 at 699.

The present case is, as we have sought to explain, of a different nature to either Ainsworth or ACTU-Solo Enterprises. There is no issue taken with the proposition that the granting or refusal of a mining tenement by the Minister under the Act affects legal rights in the relevant sense. Rather, the issue is whether a decision prior to that final exercise of discretion can be said sufficiently to affect legal rights. Thus, in the words of Stephen J, one must ask whether there is a decision which constitutes some condition precedent to the exercise of power which will affect legal rights. Alternatively, in the words of the majority in Ainsworth, the preliminary report or recommendation must operate in this situation "as a precondition or as a bar to a course of action" or "as a step in a process capable of altering rights, interests or liabilities". [17] We turn now to consider some of the decisions in which this situation has been considered.

Ainsworth [1992] HCA 10; (1992) 175 CLR 564 at 580.

In Ex parte Lain [18] no legal rights in any ordinary sense were in question. The Criminal Injuries Compensation Board was established by exercise of the prerogative as a mechanism for the distribution of funds, granted by Parliament, to victims of a personal injury attributable to criminal offences. Compensation was ex gratia. The scheme, as announced by the Home Secretary in the House of Commons, provided that "(t)he board will be entirely responsible for deciding what compensation should be paid in individual cases and their decisions will not be subject to appeal or to ministerial review". [19] Diplock LJ identified [20] the structure of the scheme as one which conferred two distinct functions upon the Board. First, it had a "judicial" function to determine in accordance with specified principles whether a particular applicant should be offered compensation. Separate and distinct was the second, or "administrative", function to make payments to applicants in accordance with such determinations.

R v Criminal Injuries Compensation Board; Ex parte Lain (1967) 2 QB 864. 2. R v Lain (1967) 2 QB 864 at 876. 3. R v Lain (1967) 2 QB 864 at 887.

It was contended that certiorari could not lie because a determination of the Board at the first stage gave rise to no enforceable rights. Rather, the determination provided for the applicant an opportunity to receive the bounty of the Crown, and ex gratia payment by the Crown gave rise to no rights in an unpaid citizen to enforce payment by civil action for a money judgment. These submissions were rejected. Lord Parker CJ said: [21]

I cannot think that Atkin LJ intended to confine his principle to cases in which the determination affected rights in the sense of enforceable rights. Importantly, his Lordship recognised [22] that "the remedy is available even though the decision is merely a step as a result of which legally enforceable rights may be affected". Diplock LJ agreed: [23] It is plain on the authorities that the tribunal need not be one whose determinations give rise directly to any legally enforceable right or liability. Its determination may be subject to certiorari notwithstanding that it is merely one step in a process which may have the result of altering the legal rights or liabilities of a person to whom it relates. It is not even essential that the determination must have that result, for there may be some subsequent condition to be satisfied before the determination can have any effect upon such legal rights or liabilities. That subsequent condition may be a later determination by another tribunal. 1. R v Lain (1967) 2 QB 864 at 881. 2. R v Lain (1967) 2 QB 864 at 881. 3. R v Lain (1967) 2 QB 864 at 884.

Diplock LJ recognised that a determination of the Board to offer to an applicant a particular sum by way of ex gratia payment did not give that applicant any right to sue for that sum. However, from this conclusion, it did not follow that a determination of the Board in favour of an applicant was without legal effect upon the rights of that applicant, because "(i)t makes lawful a payment to an applicant which would otherwise be unlawful". [24] His Lordship continued: [25]

It makes a determination by the board, in the exercise of its judicial functions, that an offer of a particular sum to a particular applicant is justified, a condition precedent to the board's authority in the exercise of its administrative functions to make any payment to that applicant. 1. R v Lain (1967) 2 QB 864 at 888. 2. R v Lain (1967) 2 QB 864 at 888.

Barwick CJ spoke to similar effect in Brettingham-Moore v St Leonards Municipality . [26] That case involved a tribunal of inquiry and report, with no power itself to make a final decision. While in the circumstances of the case relief was not necessary, Barwick CJ made it clear that, although an exercise of executive discretion was interposed between the recommendation in the report and any implementation of it, the applicant "might well have had sufficient interest to have sought certiorari at common law". This was because the making of a report recommending certain action in relation to an existing municipal council was, by the relevant legislation, made a condition precedent of the power of the Governor in Council to take action. Of this decision, Stephen J said in ACTU-Solo Enterprises: [27]

(I)f, and only if, such a recommendation were made could the Executive act in a manner which would affect legal rights. 1. Brettingham-Moore v St Leonards Municipality [1969] HCA 40; (1969) 121 CLR 509 at 522. 2. R v Collins (1976) 50 ALJR 471; 8 ALR 691 at 473 at 696.

In R v Brisbane City Council; Ex parte Read , [28] the Full Court of the Supreme Court of Queensland considered whether certiorari lay against a preliminary determination by the Brisbane City Council on a rezoning application. Such a determination gave objectors a right of appeal to the Local Government Court "against the proposal of the Council". [29] Whenever there was an appeal, the Council, when it made its final decision, was bound by the determination of the appeal. Thomas J recognised that: [30]

(i)t is true that an outright decision to grant the application may not be made at that stage, this being postponed until appeal procedures have been exhausted. The preliminary nature of the "determination" is clear. Nevertheless, the Supreme Court found that certiorari lay. Thomas J said: [31] (T)he nature of the Council's determination demonstrates that it was an important step on the path to a rezoning. Its proposal to grant the application placed the onus on the objectors to take the next step and had the practical effect of mounting a contest between the objectors on the one side and the developer and the Council on the other. It had the further effect that the determination itself was a proposal which could be regarded by the Local Government Court as the views of the responsible planning authority and to which it could properly attach weight in considering the matter. His Honour there identified that, in the situation where the Local Government Court could properly attach weight in considering the views of the Council presented by the determination, there was a sufficient affection of legal interests for the purposes of certiorari. 1. R v Brisbane City Council; Ex parte Read (1986) 2 Qd R 22. 2. R v Brisbane City Council (1986) 2 Qd R 22 at 38. 3. R v Brisbane City Council (1986) 2 Qd R 22 at 39. 4. R v Brisbane City Council (1986) 2 Qd R 22 at 41.

If Thomas J had been there indicating that, as the authorities now stand, a report which may be taken into account by an ultimate decision-maker sufficiently affects legal interests for certiorari, then, with respect, we would disagree. That conclusion would not be in accordance with the authorities to which we have referred. [32] Certainly, Ainsworth may have been decided differently, because bodies acting under other legislation may well have been entitled to take into account the report of the Criminal Justice Commission in making decisions affecting legal rights.

See also Ex parte Mineral Deposits Pty Ltd; Re Claye and Lynch (1959) SR(NSW) 167 at 176.

However, Thomas J indicates that certiorari lies where a preliminary decision must be taken into account by a body entrusted with the power to make a decision directly determining legal rights. We agree with that conclusion. That this was the point which his Honour sought to make is evident when he later said: [33]

A line needs to be drawn between the "purely recommendatory" decisions and those which are regarded as having a sufficient effect upon the rights of an individual. In the former category there may fall Royal Commissions [34] and recommendations which are not conditions precedent to the making of a final decision and which the final decision-making body may ignore. (emphasis added)

If the final decision-making body is not obliged to take the recommendations into account, then certiorari will not lie.

R v Brisbane City Council (1986) 2 Qd R 22 at 41. 2. ACTU-Solo Enterprises (1976) 50 ALJR 471; 8 ALR 691.

The conclusion of de Jersey J on the nature of the Council's role is to similar effect: [35]

The making of the Local Authority's determination is an integral and important part of the sequence of events provided for by the statute, and I am unconvinced that its merely "tentative" effect excludes the availability of certiorari to quash it in an appropriate case. 1. R v Brisbane City Council (1986) 2 Qd R 22 at 51.

A preliminary decision or recommendation, if it is one to which regard must be paid by the final decision-maker, will have the requisite legal effect upon rights to attract certiorari. [36]

See also R v Agricultural Dwelling-House Advisory Committee for Bedfordshire, Cambridgeshire and Northamptonshire; Ex parte Brough (1987) 1 EGLR 106 at 108

The relevant question on these appeals thus involves the construction of the Act and an analysis of the scheme of inquiry, report and subsequent action which it establishes. We turn to consider the relevant provisions of the Act.

The Act creates various parallel decision-making schemes for the different forms of mining tenement. Each adheres to the same basic structure. [37] Following application, the warden is to collect evidence, consider objections, make recommendations, give reasons, and transmit all of this to the Minister. Discretion is then vested in the Minister either to grant or to refuse applications.

However, the decision-making scheme laid down by the Act for the grant of prospecting licences (Pt IV, Div 1, ss 40-56A) makes the warden the final decision-maker.

An application for an exploration licence must be in prescribed form and accompanied by a statement specifying details of the program of work and the proposed method of exploration, the amount of money to be expended, and the technical and financial resources available to the applicant (s 58(1)(a) and (b)). The application must be accompanied by the prescribed application fee (s 58(1)(e)) and prescribed rent (s 58(1)(c)). It must be "lodged with the mining registrar" of the mineral field to which the application relates.

Section 59 lays down the warden's function once an application under s 58 has been lodged. The section provides for applications to be heard in open court (s 59(1)). Any person is entitled to object and "be heard by the warden in opposition to the granting of the application" (s 59(2)). As soon as practicable after hearing the application and objections, the warden must "transmit to the Minister for his consideration" the notes of evidence and maps or other documents referred to therein, and his report "recommending the granting or refusal" of the exploration licence and setting out reasons (s 59(3)).

The next stage involves the decision of the Minister. Section 57 provides that the Minister "(s)ubject to this Act", "may" on the application of any person "and after receiving a recommendation of the warden in accordance with section 59", grant an exploration licence. (emphasis added) This section expressly picks up s 59. Section 59(4) provides that, "(o)n receipt" by the Minister of "notes of evidence and any maps or documents transmitted to him", the Minister "may grant or refuse the exploration licence as he determines, and whether the warden recommends the granting of the licence or the refusal thereof". Sub-section (4) appears to indicate that the Minister's discretion to grant or refuse may be made on receipt of only the notes of evidence and any maps or documents. This leaves unmentioned the other documents which sub-section (3) requires the warden to transmit, namely, the report recommending the granting or refusal of the exploration licence and setting out the warden's reasons. Accordingly, it might be thought that the Minister's power could be exercised under s 59(4) after seeing the notes of evidence and maps, and not having before him the warden's recommendation. However, that construction runs contrary to s 57(1). This conditions the Minister's power so that the discretion may be exercised only "after receiving a recommendation of the warden". That is the primary grant of power. Section 59(4), although phrased as a grant of the same power, must be construed as a supplemental indication of the nature of the power. It merely indicates that the Minister is not bound to decide in accordance with the terms of the warden's recommendation.

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

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

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

The question then arises as to where s 105A fits into the scheme of decision-making for the grant of mining leases and exploration licences. Section 105A supplements the warden's function. It is expressed to apply, relevantly for present purposes, to both exploration licences and mining leases. Section 105A uses the expression "mining tenement" which is so defined in s 8(1) as to apply to mining leases and exploration licences. Sub-section (3) requires that where "the warden is satisfied that 2 or more applicants complied with the initial requirement in relation to their applications at the same time" then "priority shall be determined by ballot".

Counsel for Minerichie and Tromen argued that s 105A(3) did not provide for any "decision" to hold a ballot. Rather, the requirement for a ballot followed automatically, by force of the Act, upon satisfaction of the warden that applications were lodged at the same time. The matter of the warden's satisfaction was, it was further contended, one of pure fact. This was said to have a consequence, not only upon the framing of the initial proceedings, but also upon the availability of certiorari against the warden. The contention was that the only ground for challenging the factual satisfaction of the warden would be manifest unreasonableness, something not considered by the Supreme Court.

These submissions are correct in so far as they identify that, upon satisfaction as to lodgment "at the same time", it follows by force of the Act that a ballot is necessary. This is clear from the reasons of the warden. When the warden noted his satisfaction, he said "accordingly" it was appropriate to conduct a ballot (emphasis added). Malcolm CJ, to whom the present submission had not been made, encompassed this when he said:

At the time when applications were made for orders nisi, matters had reached a stage where the Warden had decided that the relevant applicants for tenements which were the subject of the first three applications for certiorari had "complied with the initial requirements in relation to their application at the same time" for the purposes of section 105A(3) of the Act and so determined that their priority should be determined by ballot, notwithstanding the recording of the different times of lodgement of the applications. (emphasis added)

The "decision" to order a ballot follows automatically from satisfaction as to initial compliance at the same time. They are aspects of the same decision. In effect, a complaint about the ordering of a ballot is a complaint directed to the warden's satisfaction as to initial compliance at the same time. The satisfaction or dissatisfaction of the warden clearly affects the manner in which the ballot will be performed. The meaning of the statutory words "at the same time" is a question of law. Wrapped up in that question is the issue of who is to be included in the ballot, in other words, which applications were lodged "at the same time".

The material which led to the satisfaction of the warden in that respect will be in the report, as will the conclusion as to satisfaction. It is also apparent that the result of the ballot will be included in the report recommending grant or refusal which must be transmitted to the Minister under s 59(3) for exploration licences and s 75(3) for mining leases. Rowland J correctly identified the function of the warden:

In this case, as there are several conflicting applicants, (the warden) has to make findings for the purposes of s 105A. He has made the finding and has in fact ordered that a ballot be held to determine who will be deemed to have priority for the purposes of that section. When that ballot has taken place, he will then no doubt submit his report.

It is important to analyse the structure of the decision-making process prescribed by the Act in this fashion. It would be a mistake to compartmentalise the function of the warden under the Act, and to see whether that function, especially the decision to determine priority by ballot, of itself, creates any legal right. The question then becomes, is the right of priority a sufficient legal right? To answer that question, the focus is necessarily upon the nature of the priority right. In contrast, the correct approach recognises that the legal right at the end of the process, namely the grant of an exploration licence or a mining lease, is a sufficient legal interest. The issue is whether the decision of the warden to conduct a ballot, as that decision appears as part of the report transmitted to the Minister, has a sufficient legal effect upon the final decision of the Minister to grant or refuse applications. Some analysis of the nature of "the right in priority over every other applicant" (s 105A(1)) may be relevant in discussion of the nature of the Minister's discretion, but its nature as a legal right is not to the point.

It is not necessary to decide upon the nature of the "right in priority". However, there were submissions on the point presented to the Court and it seems appropriate to make some comment upon them. In essence, two alternative views of the right in priority were suggested. Hot Holdings submitted that the applicant with priority under s 105A is entitled to have the Minister deal with its application without regard to competing applications. In other words, the Minister begins by considering only the first application. Subsequent applications are considered only if the former fails for some reason. In contrast, Arimco and Oresearch submitted that the priority right in s 105A is, as a matter of construction, no more than a right to grant if there are competing applications and "all things are equal". In other words, the Minister considers all the applications which are before the Minister and simply bears in mind that one was first in time. In that situation, where all other things are equal, that first in time will succeed.

There is some support for the former view in Stow v Mineral Holdings (Australia) Pty Ltd . [38] In that case, this Court was called upon to consider whether a particular decision of the warden under the Mining Act 1929 Tas was appealable as a "final judgment, determination or decision". In the course of explaining the true function of the warden under the Tasmanian statute, Mason J considered the right of priority which was for the warden to determine: [39]

In providing that priority follows the order of marking out (the section) proceeds consistently with the general principle applicable to mining leases that has been enshrined in Australian mining legislation over a very long period of time, namely that the title to mine "has been based on possession; the person first taking such possession under restrictions imposed being held to have the best right" (The section) puts applications for special prospectors' licences and exploration licences on a somewhat similar footing by according priority in order of marking out. The point here is that the Act does not provide that such applications are to be dealt with as competing or conflicting applications; instead it provides in effect that they are to be dealt with as successive applications, priority being accorded in the manner already discussed, the later application proceeding to a grant only in the event that the earlier application is held to be invalid or is refused by the Minister. It is to be noted that this decision was before 1978, when the statute of Western Australia with which we are presently concerned was enacted. This statute was notable for the manner in which it increased the level of discretion in the Minister to decide applications by reason of policy. The Minister is entrusted with a broad discretion to facilitate decisions about mining tenements without adherence to a rule of strict priority. 1. Stow v Mineral Holdings (Australia) Pty Ltd [1979] HCA 30; (1977) 180 CLR 295; 51 ALJR 672; 14 ALR 397. 2. Stow [1979] HCA 30; (1977) 180 CLR 295 at 302-303.

It appears that the latter view is preferable. That view has gained some currency. Brinsden J, when dealing with s 105A of the Act in Tortola Pty Ltd v Saladar Pty Ltd and Holloway, said: [40]

Perhaps (but without deciding) so far as the Minister is concerned the section should be read as providing that if all other things are equal the right in priority should be afforded to the earlier application. 1. Tortola (1985) WAR 195 at 205.

For the purposes of the present appeals, it is not necessary to decide this issue. It is fair to say, at least, that on either view of the right, the Minister is not bound to grant the application of the first in time, or the winner of the ballot. But that is not the point. The point is whether the decision as to initial compliance at the same time, which led to an order for a ballot to be held, has an apparent or discernible legal effect upon the Minister's final decision. It is to that question that we now turn.

In the Supreme Court Malcolm CJ recognised that:

the making of the report by the Warden conditions the exercise by the Minister of his discretionary power to grant or refuse the application. The content of the report does not condition the exercise of the power. The Chief Justice here draws a distinction. This is between a preliminary finding which is a necessary precondition of a final exercise of power, in the sense that the actual content of the finding must support the final decision, and a finding which is a necessary precondition in the sense only that, so long as it is made, it activates the power, regardless of its content. Ex parte Lain was a case of the former type. There, the determination of the Criminal Injuries Compensation Board in favour of an applicant was a precondition of the Board's authority to make a payment. In contrast, the present is a case of the latter type. The Minister may grant or refuse to grant whether or not the warden recommended the grant or refusal of the mining tenement. [41] 1. cf Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 at 481.

While it may be true that the content of the warden's report and recommendation does not bind the Minister, this does not mean that the report and recommendation of the warden is not something to which the Minister is bound to have regard in exercising his discretion. In so far as the judgments of the Supreme Court may be taken to mean that the warden's report need not be considered by the Minister, then, with respect, they are in error. Malcolm CJ said:

(I)n the context of a ballot which includes an applicant for a mining lease, the Minister will not be bound by the result of the ballot, but may take it into account in reaching his decision. (emphasis added)

the grant of the relevant mining tenements are entirely within the discretion of the Minister and, subject to his consideration of all of the other factors which he will take into account when considering the Warden's recommendation, the first in time will have priority.

Nicholson J, in our view correctly, thought that "(t)he exercise of the Minister's power is not conditioned by the ballot although the outcome of the ballot would be a matter the Minister would be required to take into account along with the other circumstances concerning how it came to be ordered" (emphasis added).

The courts do not readily classify as absolute or unfettered a statutory discretion, the exercise of which will affect the rights of the citizen, and, if the legislature intends that result, "it should do so by a very plain expression of its intent". [42] Thus, apart from express provision, a statute may impliedly require the repository of a power to have regard to certain considerations in deciding on its exercise and, in determining whether the repository is bound to have regard to any and what matters, the subject-matter, scope and purpose of the statute must be considered. [43]

FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 368 per Mason J. 2. Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 56 per Brennan J. See also O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 where authorities are collected applying Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505 per Dixon J.

With these principles in mind it is possible to determine if there are any factors under the Act which the Minister is bound to consider in exercising the discretion under either s 57(1) or s 71. It would be wrong to conflate these grants of discretion, each decision-making structure is different, and different considerations may be relevant and mandatory.

The Minister's discretion to grant an exploration licence or mining lease is expressed as "subject to this Act". Indeed, Rowland J commented that:

(t)he Act is bedevilled with the use of the expression "subject to this Act". His Honour concluded that: "the only useful purpose to be served by the phrase in ss 57(1) and 71 is to ensure that the particular tenement, if and when granted, is one that is recognised by the Act". The phrase as it appears in ss 57(1) and 71 is indicative of a situation in which the Minister's discretion is not unfettered. The discretion must be exercised in accordance with the requirements of the Act. Both ss 57(1) and 71 refer to the requirements set out by the Act before any exercise of the Minister's discretion can occur. First, the Minister's power to grant is "on the application of any person". Second, that power is enlivened "after receiving a recommendation of the warden".

Turning first to exploration licences, the initial requirement, that of an application, is fleshed out by s 58(1). Paragraph (b) of that sub-section requires an application to be accompanied by a statement specifying various matters which we have already outlined. Under s 57(3), the warden is obliged not to recommend the grant of an exploration licence unless he is satisfied that the applicant is able effectively to explore the land. The statement provided by the applicant under s 58(1)(b) facilitates that satisfaction.

The decision-making structure for the grant of mining leases is a parallel but slightly different scheme. The requirement of an application which appears in s 71 is fleshed out by s 74. In the case of a mining lease, the application does not need to contain a statement specifying the same matters as is required for an exploration licence. Such information may be requested. However, there is a requirement of notice to be served upon the owner or occupier of the land to which the application relates (s 74(3)) and the application must be made by reference to a written description of the area of the land accompanied by a map on which are clearly delineated the boundaries of that area (s 74(4)).

In the case of an application by someone who already holds a prospecting licence or an exploration licence, then the Minister "shall" grant a mining lease (s 75(5)). Accordingly, if the application of "any person" is from the holder of one of these types of licence, then the Minister's discretion is considerably reduced.

The second requirement before an exploration licence may be granted is that the Minister receive a recommendation of the warden. That requirement is reinforced by s 59(3) which obliges the warden after the hearing of the application to "transmit to the Minister for his consideration the notes of evidence and any maps or other documents referred to therein, and his report recommending the granting or refusal of the exploration licence and setting out the warden's reasons for his recommendation". (emphasis added) The requirement is further emphasised by s 59(4) which provides that the Minister may grant or refuse the exploration licence only "(o)n receipt" of documents transmitted to him pursuant to sub-s (3).

Turning to mining leases, the provisions concerning the transmission "for his consideration" to the Minister of the warden's report and recommendation, providing that "on receipt" the Minister's power is enlivened, are to the same effect as the provisions regulating the grant of exploration licences. Section 75(4) expressly states that the Minister may grant or refuse an application notwithstanding the warden's recommendation and notwithstanding compliance with the Act.

Before any grant or refusal of an exploration licence or mining lease, the Act specifically requires "receipt" of the warden's findings to allow "for (the Minister's) consideration" of those matters. It would be an odd state of affairs if these provisions merely enabled the Minister to consider the warden's report and recommendations, as opposed to requiring the Minister to have regard to them.

Such a conclusion is in conformity with the decision of this Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd . [44] That case concerned the issue of whether the Minister was bound to take into account the comments on detriment which the Aboriginal Land Commissioner was required under the Aboriginal Land Rights (Northern Territory) Act 1976 Cth to include in a report. The Commissioner was required to report findings to the Minister and also to make recommendations. In making the report the Commissioner was to have regard to "the strength or otherwise of the traditional attachment by the claimants to the land claimed" and "shall comment" on four matters, including "detriment to persons or communities that might result if the claim were acceded to". Earlier, in R v Toohey; Ex parte Meneling Station Pty Ltd , [45] this Court had held that the Commissioner was not bound to take into account in his recommendation the factors, including detriment, upon which he was required to comment. In Peko-Wallsend, the issue was whether the Minister was bound to take into account the comments on detriment made by the Commissioner in his report. Under s 11 of the Aboriginal Land Rights (Northern Territory) Act 1976 Cth, the Minister's discretion to grant land to a Land Trust for the benefit of Aboriginals arose where the Commissioner had recommended such grant and "the Minister is satisfied that the land or any part of the land should be so granted".

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. 2. R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327.

In Meneling Station there had been conflicting expressions of opinion as to the nature of the Minister's obligation to consider matters upon which the Commissioner was required to comment. Gibbs CJ said: [46] "The Minister is in no sense bound by the recommendation of the Commissioner, and in making his decision may wish to consider the matters mentioned including the detrimental effect of acceding to the claims".

The Minister's recommendation is not a mere affirmation or rejection of the recommendation made by the Commissioner. The Minister, having regard to the Commissioner's recommendation that it would be right for the Crown to grant the land in satisfaction of the traditional owners' needs and entitlement, must decide whether other factors warrant refusing the grant recommended, and in reaching his decision the Minister is bound to have regard also to the Commissioner's comments upon the matters referred to. 1. R v Toohey [1982] HCA 69; (1982) 158 CLR 327 at 334. 2. R v Toohey [1982] HCA 69; (1982) 158 CLR 327 at 362.

In Peko-Wallsend Mason J agreed with Brennan J's view, and explained his reasons as follows: [48]

The Act does not expressly state that the Minister is bound to take into account the Commissioner's comments on the matters in pars (a) to (d) of s 50(3) in exercising his power under s 11(1)(b) to decide whether or not he is satisfied that a land grant should be made. But a consideration of the subject-matter, scope and purpose of the Act indicates that such a finding is necessarily implied by the statute. The factor that leads irresistibly to this conclusion is the specific requirement in s 50(3) that the Commissioner comment in his report on each of the four matters enumerated in the sub-section, including of course detriment. That provision recognises that the granting of land to a Land Trust may adversely affect the interests of many people, in some cases in a very substantial way. The legislature was clearly concerned that the Minister should not overlook crucial considerations which might counterbalance or outweigh the fairness and justice of granting the land when making his decision under s 11(1)(b). Accordingly, it provided the means whereby such factors would be analysed and drawn to his attention for the purpose of having them taken into account. That purpose would not be achieved if the Minister was merely entitled, but not bound, to consider these factors. 1. Minister for Aboriginal Affairs [1986] HCA 40; (1986) 162 CLR 24 at 44. See also at 30 per Gibbs CJ, 57-58 per Brennan J, 69 per Deane J, 71 per Dawson J.

This reasoning is to be applied in the present case. Here, the legislature provided no other means for the Minister to be informed of matters specific to the individual applicants. It is apparent that the Minister is bound to consider the information which the warden transmits under s 58(3) and s 75(3). The Minister may not exercise the discretion to grant or refuse applications until the warden's recommendation and report, expressing as it must the warden's decision on priority, is received and taken into account. The result of this statutory process is that, regardless of the content of the "right in priority", the warden's decision has a discernible legal effect upon the Minister's exercise of discretion.

That conclusion is not affected by those provisions which make clear that the Minister is in no way bound by the recommendation of the warden (ss 59(4), 75(4)). These provisions are but a statutory indication that the weight of those considerations need not be decisive. [49] They do not go to show that the consideration is other than one which the Minister is bound to consider.

Peko-Wallsend (1986) [1986] HCA 40; 162 CLR 24 at 41.

We would allow the appeals. In each appeal there should be a declaration to the effect that certiorari lies with respect to a decision by a warden to conduct a ballot for the purposes of determining the party entitled to priority under s 105A of the Mining Act 1978 WA.

The orders of 21 October 1994 by which the Full Court discharged the orders nisi should be set aside.

In each case the matter should be remitted to the Full Court for consideration by it of the question whether certiorari should issue.

The Full Court reserved the question of costs. We would not disturb that order. It remains to consider the costs of the appeals to this Court. In Matter No P12 of 1995 we would order that the second respondents pay the costs of the appellant and of the first respondents.

In Matter No P13 of 1995 we would order the third respondents to pay the costs of the appellant and of the first respondent. There remains the question of costs of the second respondents to this appeal. As indicated in these reasons for judgment, the second respondents, Arimco and Oresearch, took a particular stance in their submissions and we would not order the third respondents to bear their costs. In the circumstances, the preferable course is to make no order with respect to the costs of the second respondents in Matter No P13 of 1995.

These appeals from the Full Court of the Supreme Court of Western Australia (Malcolm CJ, Rowland and Nicholson JJ) were heard together. In each case special leave to appeal was limited to the issue:

whether certiorari lies to challenge a decision by a warden to conduct a ballot for the purposes of determining the party entitled to the priority right conferred by s 105A(1) of the Mining Act 1978 WA. Certiorari was sought by the appellants in order to have quashed the decision of the warden that they take part in a ballot with others.

The circumstances giving rise to these appeals appear in the judgment of Brennan CJ, Gaudron and Gummow JJ. While reference to those circumstances is required in order to understand how the matters came before the Full Court, the issue itself turns largely upon the proper construction of the Mining Act 1978 WA (the Act). The Act and its predecessor, the Mining Act 1904 WA (the 1904 Act), have been a frequent source of litigation. In part this has been due to difficulty in defining the relationship between the roles of the Minister and the warden in the granting of mining tenements. These appeals illustrate that difficulty.

The relevant sections of the Act, as they stood at the time when the applications for exploration licences and mining leases were made, are set out in the judgment of the majority. We shall not repeat those provisions verbatim but it will be necessary to refer to some of the language used.

All save one of the applications for certiorari concerned exploration licences. The exception related to a mining lease. The Minister is empowered by s 57(1), in the case of an application for an exploration licence, and by s 71, in the case of an application for a mining lease, to grant the application. In each case the power is expressed to be "Subject to this Act", a qualification which might seem unnecessary since the Act must be read as a whole. [50] Be that as it may, in each case the exercise of the power is conditioned by the receipt of a report by the warden recommending the granting or refusal of the exploration licence in accordance with s 59 or the receipt of a report by the warden recommending the granting or refusal of the mining lease in accordance with s 75. As is discussed later in this judgment, it is the receipt of a recommendation which triggers the exercise of ministerial power, not the content of the recommendation.

See Pearce and Geddes, Statutory Interpretation in Australia, 3rd ed (1988) at 14.

In the case of an application for an exploration licence or a mining lease, [51] the application is heard by the warden in open court together with any objection to the application. The warden then transmits "to the Minister for his consideration" the notes of evidence and any maps or other relevant documents "and his report recommending the granting or refusal of the exploration licence and setting out the warden's reasons for his recommendation". [52] There is a similar provision in the case of a mining lease. [53]

Both are included in the definition of mining tenement in s 8(1) of the Act. 2. s 59(3). 3. s 75(3).

At the centre of the dispute stands s 105A. Sub-section (1) of that section provides that, subject to s 111A (which does not arise for consideration), where more than one application is received for a mining tenement in respect of the same land, the applicant who first "complies with the initial requirement" (a reference to lodging an application for an exploration licence or marking out the land in the case of a mining lease [54] ):

has, subject to this Act, the right in priority over every other applicant to have granted to him the mining tenement to which his application relates. Sub-section (3) then provides that where the warden is satisfied that two or more applicants complied with the initial requirement "at the same time", priority shall be determined by a ballot conducted by the warden in open court. 1. s 105A(4).

Section 147 provides a right of appeal to the Supreme Court by any party "aggrieved by any final judgment, determination or decision of a warden's court". But this right is severely qualified by s 151(b) by which there is no right of appeal:

in respect of any decision, order or recommendation of the warden or of the Minister upon any application for a mining tenement. Because of the limitations imposed by the Act upon appeals, the "decision" of the warden that there should be a ballot to determine which applicant had priority for the purposes of s 105A was challenged by prerogative writ. There is however a power in the warden, at any stage of proceedings under the Act, to reserve any question of law for the opinion of the Supreme Court. [55] The warden was not asked to exercise this power. 1. s 146(1).

It is necessary to mention a few matters of fact. The decision to hold a ballot was reached by the warden in the course of lengthy "Reasons for Decision" which included a conclusion that five of the applicants "complied with the initial requirement at the same time". A ballot has not yet been held. Indeed, the Court was told that the warden has not yet reported to the Minister in accordance with the Act. The status of the "Reasons for Decision" is therefore far from clear.

All members of the Full Court rejected the applications made by Hot Holdings Pty Ltd, Mark Gareth Creasy and Robert Wilmot Creasy for certiorari to quash the decision of the warden to hold a ballot. Malcolm CJ, Rowland and Nicholson JJ delivered separate judgments. It will be necessary to make some reference to the approaches taken by their Honours. There is however an initial question to be considered. It is to identify what if anything conditions the power of the Minister to grant an application for a mining tenement apart from the receipt of a report. The Minister is empowered to grant or refuse the exploration licence "as he determines" [56] and the mining lease "as he thinks fit", [57] in each case whether the warden recommends the granting of the tenement or its refusal. [58] In this regard the only distinction drawn by the Act between the two forms of tenement is that in the case of a mining lease the Minister may make a grant whether or not the applicant has in all respects complied with the provisions of the Act. [59] By implication this dispensing power does not exist in the case of an exploration licence.

s 59(4). 2. s 75(4). 3. ss 59(4) and 75(4)(a) respectively. 4. s 75(4)(b).

It is against that background that the availability of certiorari arises for determination. What is sought by the appellants is certiorari to quash the decision of the warden to conduct a ballot. Prerogative relief is not sought in respect of any recommendation of the warden; as mentioned earlier the warden has not made any recommendation at this stage. Inevitably then the respondents argued that certiorari was not available because the decision to conduct a ballot did not affect the rights of the parties, either of itself or as part of the process whereby the Minister might grant or refuse an application.

Casting a shadow over the argument is the presence of s 105A. If, as was argued, the section creates an entitlement in the winner of the ballot to the grant of a mining tenement, the decision to conduct a ballot could readily be seen as affecting the rights of the parties. However, we agree with the comments of Rowland J when he said:

I can see no reasons of policy or logic which would cause the Parliament to enact legislation which gives to the Minister what is relevantly an absolute discretion to grant or refuse a relevant mining tenement where there is only one applicant for the land in question, but would oblige the Minister to grant it to an applicant who is first in time where there is more than one applicant.

The rejoinder might fairly be made: what are the consequences of being the first to comply with the initial requirement, whether that position is reached in fact or pursuant to a ballot? It is hard to resist the stricture of Rowland J, at least in relation to this provision, that "the Act is not happily drafted". Given the very clear statement of the power of the Minister to grant or refuse an application, it is hard to see that s 105A(1) does more than give the applicant who first complies with the initial requirement a factor in his favour which the Minister cannot ignore, any more than he can ignore any other relevant consideration, but which does not preclude the Minister from refusing that application or acceding to another. The provision does no more than give the applicant who first complies a right to have that application considered in priority to other applications. Vague and inconclusive though this proposition may be, we are unable to extract greater precision when the Act is read as a whole.

"The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review." [60] It follows that "if an act or decision has no legal effect, there is nothing to quash". [61] However, as the majority in Ainsworth continued: [62]

It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities. A report or recommendation of that kind may be quashed, that is to say its legal effect may be nullified by certiorari. (footnotes omitted)

Thus certiorari is available when a decision affects rights or where, though a preliminary step, it is sufficiently connected with a decision that does so.

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 580 per Mason CJ, Dawson, Toohey and Gaudron JJ. 2. Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 595 per Brennan J. 3. Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 580.

The decision by the warden to hold a ballot does not of itself have legal consequences. It is a decision, the result of which does not determine the outcome of the report made by the warden. Whatever recommendation is made by the warden, the decision to grant or refuse an application is one for the Minister. But, it is said, the decision to hold a ballot is a step in a process capable of affecting rights, interests or liabilities. Or, put another way, the decision is in the circumstances a precondition to the exercise by the Minister of a power which will affect legal rights.

It is necessary to say again that there has been no report by the warden. The receipt of a recommendation in a report is a precondition to an exercise of power by the Minister under s 57. It is also, if not expressly then by clear implication, a precondition to an exercise of power under s 71. A recommendation cannot of itself affect legal rights because, whatever its content, the decision is one for the Minister. True, it is a precondition to an exercise of power which will do so. But it is the existence of a recommendation, not its content, that is the precondition. In Egypt Holdings; Ex parte Esso Exploration Burt CJ said: [63]

It is the warden's report which conditions the Minister's power and not the contents of that report. And hence, from the applicant's point of view, [64] it is the report which must be quashed and not the recommendation which it contains and I would reserve for further consideration the question of whether the report can be quashed because of the recommendation contained within it. What is challenged in the present case is the decision to hold a ballot, not a recommendation in a report, not even the report itself. 1. Egypt (1988) WAR 122 at 123. 2. The Court was dealing with the return of an order nisi for the issue of a writ of certiorari against a mining warden who recommended for approval an application for a mining lease against the objection of the applicant for prerogative relief.

In Ainsworth, in rejecting the argument that the report in question affected the legal rights of the appellants, the majority noted that the appellants might be granted a gaming licence in direct opposition to any recommendations made by the respondent. They said: [65] "There being no legal effect or consequence attaching to the report, certiorari does not lie to correct the failure of the Commission to comply with its duty to proceed in a way that was fair to the appellants." In the present case the Minister may grant or refuse an exploration licence or mining lease in opposition to the recommendation of the warden. [66] The matter was put this way by Malcolm CJ: [67]

Under the 1978 Act, the making of the report by the Warden conditions the exercise by the Minister of his discretionary power to grant or refuse the application. The content of the report does not condition the exercise of the power. The more recent authorities on the scope of certiorari were considered by this Court in Ainsworth . Decisions such as Brettingham-Moore v St Leonards Municipality , [68] R v Criminal Injuries Compensation Board; Ex parte Lain [69] and R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd [70] in which certiorari was held to lie are distinguishable because in each case the making of a proposal or determination was conditioned by an earlier decision. In Collins Stephen J said [71] that certiorari lay where "the reporting of particular conclusions satisfy some condition precedent to the exercise of power which will in turn affect rights". However, as Wickham J recognised in Centamin Exploration (WA) Pty Ltd v Gething , [72] a decision under the 1904 Act: Neither is it a case where the content of the recommendation of the Warden conditions the exercise of discretionary power by the Governor. If that were so it would be a case within the category of R v Criminal Injuries Compensation Board; Ex parte Lain. The recommendation of the warden is a precondition to the exercise of power by the Minister, only in the sense that it must take place. Its content is not a condition precedent to the exercise of power. A decision by the warden to conduct a ballot does no more than pave the way for a situation in which one applicant will be entitled to have his, her or its application considered in priority to other applications. Nor is such a decision truly a step in a process capable of affecting rights because the Minister may make a decision completely against any recommendation by the warden which follows. There is a parallel in R v Macfarlane; Ex parte O'Flanagan and O'Kelly where Knox CJ said of a Board appointed under the Immigration Act 1901 Cth: [73] Its sole function is to recommend Its recommendation has no binding force, imposes no obligations, and affects no rights. If it recommends deportation, the Minister is at liberty to act, or to refrain from acting, on the advice given. 1. Ainsworth [1992] HCA 10; (1992) 175 CLR 564 at 581. 2. ss 59(4) and 75(4). 3. See also Re Warden French; Ex parte Serpentine (1994) 11 WAR 315 at 328. 4. Brettingham-Moore v St Leonards Municipality [1969] HCA 40; (1969) 121 CLR 509. 5. R v Criminal Injuries Compensation Board; Ex parte Lain (1967) 2 QB 864. 6. R v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471; 8 ALR 691. 7. R v Collins (1976) 50 ALJR 471; 8 ALR 691 at 473 at 695. 8. Unreported, Supreme Court of Western Australia, 2 May 1982 at 2. 9. R v Macfarlane [1923] HCA 39; (1923) 32 CLR 518 at 527.

There have been a number of decisions of the Supreme Court of Western Australia in which certiorari has been held not to lie against a recommendation of the warden. Centamin and Egypt Holdings are but two examples. It is apparent from the operation of ss 147 and 151, coupled with s 146, that the legislature intends challenges to decisions by the warden to be severely limited. That of itself is no objection to the grant of prerogative relief. But if certiorari lies in the present case, it is inevitable that a range of decisions by a warden will be subject to challenge, notwithstanding the language of s 151.

That leads to another consideration which, in our view, strengthens the refusal of the Full Court to grant prerogative relief in these cases. While certiorari is sought ostensibly to challenge the decision of the warden to conduct a ballot, in truth what is under attack is the satisfaction of the warden that two or more applicants complied with the initial requirement at the same time. A decision by the warden to conduct a ballot is not made at large or after weighing a number of factors. If the warden is "satisfied" in terms of s 105A(3), "priority shall be determined by ballot". It follows that, if certiorari were granted, the challenge would necessarily be to the warden's conclusion that he was satisfied that two or more applicants had complied with the initial requirement "at the same time". These are ordinary words constituting an ordinary phrase. Their meaning is a question of fact. [74] There is no question of law, no question of statutory construction involved. What form, then, would the challenge take? Would it be that the conclusion was "manifestly unreasonable", in the sense discussed by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd ? [75] It is not for the Court, within the limited framework of the grant of special leave, to enter upon these matters. But they serve to point up the inappropriateness of certiorari when the challenge, seen in its proper context, is to a finding of fact by the warden.

The relevant authorities are collected in Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 287-288. 2. Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41-42.

In our view the Full Court was right in the conclusion it reached and both appeals should be dismissed.

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