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[2011] NSWLEC 50
Land and Environment Court (NSW)
2011-03-02
Preston CJ
Original judgment source is linked above.
55 Woolworths Limited v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 Category: Principal judgment Parties: Mr Anthony Gilbert Martin (Applicant) The State of New South Wales (First Respondent) Central West Scientific Pty Ltd (Second Respondent) Representation: Applicant in person Ms C Spruce (First Respondent) Mr R Hetherington (Agent for the Second Respondent) Crown Solicitor's Office (First Respondent) File Number(s): 80004 of 2010
A competitor's exploration licence is challenged 1Mr Martin and his wife have an interest in the exploration for certain types of minerals in NSW and are, and have been, the holders of various exploration licences. One of the areas of mineralisation in which Mr and Mrs Martin have been interested is an area near Yambulla in the south east of NSW towards the Victorian boarder. The area is underlain by granitoid rocks of the Bega Batholith which is of Devonian age. This is a composite batholith of multiple phases and chemical variations of intrusives. Of interest to many prospectors, although not necessarily Mr Martin, is the intrusion related gold mineralisation. 2The area in and around Yambulla has, since 10 June 1881, had a mining history, mainly focussed on gold. Alluvial, surface and underground goldmining has occurred in the past. Modern exploration of the Yambulla area commenced in 1966. Since then a variety of mining exploration companies have explored the area, under various exploration licences, prospecting not only for gold but also other minerals including silver and molybdenum. They have produced exploration reports, as required by the terms of their exploration licences, which provide information on the geology and the mineralisation of the area. The governmental Geological Survey of NSW, on occasions, has reviewed and reported on the published and unpublished records of the geology, mineralisation and mining history of the Yambulla Goldfields and other areas. 3The most recent exploration work was undertaken by Lucknow Gold Ltd ("Lucknow") under Exploration Licence No 6499 ("EL 6499") and Central West Scientific Ltd ("CWS"), under Exploration Licence No 7547 ("EL 7547"). It is the grant of the latter licence, EL 7547, that Mr Martin challenges in these proceedings. 4The motivation behind Mr Martin's challenge is that he has wished, and still wishes, to apply for the right to explore the area covered by the former EL 6499 granted to Lucknow and the current EL 7547 granted to CWS. Mr Martin said he was unaware when EL 6499 expired and he missed out on the opportunity to apply for an exploration licence over the area before CWS applied for, and then was granted, EL 7547. Mr Martin believes that if the Court were to set aside EL 7547, he would then have an opportunity to apply for an exploration licence over the area.
The grounds of challenge 5Mr Martin has represented himself in these proceedings. He has drafted points of claim, the last version of which were amended by leave of the Court on 28 February 2011. As is often the case with pleadings of litigants in person, the precise grounds upon which Mr Martin challenges the exercise of power to grant EL 7547 are opaque. In opening his case at the final hearing, however, Mr Martin did articulate 11 grounds of challenge to the validity of EL 7547. Mr Martin accepted that the nature of the Court's jurisdiction under s 293(1) of the Mining Act 1992 ("the Mining Act") to review the exercise of power to grant EL 7547 was that of judicial review of the validity of EL 7547, as held by Rothman J in Midcoast Lime Co Pty Ltd v Minister for Primary Industries [2008] NSWSC 331 at [42]-[45]. 6I endeavoured to summarise in writing what I understood to be the grounds of challenge stated by Mr Martin in his opening and I provided my written summary to Mr Martin and the other parties. I set out in the appendix to this judgment my written summary. I invited Mr Martin to correct my written summary if he thought it to be inaccurate. Mr Martin did not seek to correct the summary or to point to any inaccuracies in it. He did develop and particularise each of the 11 grounds in submissions and by reference to the evidence tendered. However, this adumbration did not add new grounds of challenge. 7I should also note that Mr Martin was reluctant to accept the written summary to be a substitute for his amended points of claim and said that he still relied on his amended points of claim. However, Mr Martin did not point to any statements in the points of claim which he said gave rise to a different ground of challenge to the validity of EL 7547. 8Nevertheless, I should note that Mr Martin does claim, in his amended points of claim, that certain legislative amendments made by the NSW Parliament to the Mining Act on and since 7 April 2009 are unconstitutional and exceed the legislature's authority (see paras 29-32 of the amended points of claim). The relevance of this challenge to legislative amendments by Parliament, to the exercise of the Minister's power to grant EL 7547 was obscure. In any event, however, the Land and Environment Court of NSW, being a specialist statutory court, has no jurisdiction to review the constitutionality or legal validity of legislative amendments by Parliament to the Mining Act and that claim of Mr Martin can be dismissed on this basis alone. 9I therefore propose to deal with each of Mr Martin's grounds of challenge on which he opened his case, as set out in the written summary I have provided to the parties. Before doing so, I will briefly summarise the key facts relating to the application for and grant of EL 7547.
Some facts of the application for and grant of the exploration licence 10As I have noted, EL 7547 was the successor title to EL 6499. Mr Martin relies on some facts associated with the grant of and exploration pursuant to EL 6499 in his challenges to the validity of EL 7547. Accordingly, I will begin by briefly outlining the facts associated with the grant of EL 6499 before turning to the facts associated with the grant of EL 7547. 11EL 6499 was granted on 3 January 2006 to Agricultural Equity Investments Pty Ltd ("AEI") for a term of 2 years, for Group 1 minerals and for the whole or parts of 36 graticular units of the licence area. A condition of the exploration licence required a minimum annual expenditure on exploration of $38,000 for the first two year period. 12EL 6499 was renewed in relation to all 36 units of the licence area for a new term of one year from 3 January 2008, with an annual expenditure commitment for the second one year period of $66,000. 13On 15 February 2008, EL 6499 was transferred from AEI to Lucknow Gold Ltd ("Lucknow"). 14On 26 November 2008, Lucknow applied for a further renewal, under special circumstances, for all 36 units of the licence area for an additional two year term from 2 January 2009. Lucknow submitted that there were special circumstances justifying renewal of all of the 36 units rather than a 50% reduction in the number of units. These special circumstances included Lucknow not being able to raise the required funds for completing the proposed work program, which included an aeromagnetic and radiometric survey of the licensed area. 15On 18 March 2009, a departmental Minute Paper considered Lucknow's application for renewal of the whole of the 36 unit area. The Minute Paper noted that Lucknow had been granted a one year renewal of the exploration licence in order to carry out the proposed aeromagnetic and radiometric survey. However, Lucknow did not carry out the aeromagnetic survey or other effective exploration over the licensed area. The Minute Paper did not consider, as a sufficient extenuating circumstance, that Lucknow had been unable to raise the required funds from an IPO (initial public offering) which was withdrawn at the end of the last period. The Minute Paper concluded that the special circumstances renewal policy criteria had not been satisfied and recommended that Lucknow's renewal application be refused. 16On 9 April 2009, Ms Chris Cottier of the Titles Branch of the Department wrote to Lucknow advising that "[t]he Department has considered your application [for renewal of Exploration Licence No 6499] and, as you failed to carry out the airborne survey which was a condition of the last renewal of the licence, it is proposed to refuse your application for renewal." The Department invited Lucknow to make any representations it wished to Ms Chris Cottier before the Minister made a final determination of the application for renewal. 17On 13 May 2009, after receipt and consideration of the Department's letter, Lucknow withdrew its renewal application. EL 6499 thereupon expired. The exploration licence had stayed in force beyond the expiry date of 2 January 2009 whilst the application for renewal of licence had been pending but on withdrawal of the renewal of the application, on 13 May 2009, the licence thereupon expired. 18Mr Martin relies on the non-renewal of EL 6499 to support two of his grounds of challenge to the grant of EL 7547: one that that Minister should have concluded that CWS would also be unable to carry out the required work program, just as Lucknow had been unable to do so, and the other that, just as the Minister had not been satisfied that special circumstances had been established for renewal for Lucknow for an area greater than 50% of the licensed area, the Minister should not have granted CWS's new exploration licence for the whole 36 units of the licensed area. 19On 7 August 2009, CWS, by its agent Hetherington Exploration and Mining Title Services Pty Ltd ("Hetherington"), lodged a new application for an exploration licence over the same area (the whole or part of the 36 units) to which EL 6499 had applied. This new exploration licence was assigned the number 3759 ("ELA 3759"). The application comprised a number of documents. These are described in Hetherington's covering letter of 7 August 2009 as follows: "In support of the Application for an Exploration Licence, please find enclosed the following:
Alleged supply and use of confidential information 38Mr Martin's first ground of challenge is that CWS was provided by the Department with, and used in its application for an exploration licence, first, confidential intellectual property of Mr Martin and, secondly, departmental information on the geology and mineralisation of the area not known to the general public or other potentially interested parties including Mr Martin. 39This ground of challenge fails for two reasons: first, Mr Martin has not established on the evidence before the Court, the facts necessary to found his claims and, secondly, even if confidential information of Mr Martin or departmental information not known to the public were to have been provided to CWS (which is not established), Mr Martin has not shown how this leads to the invalidity of EL 7547. 40As to the first reason, Mr Martin said in his oral submissions that confidential information obtained by Mr Martin from his geological consultants was submitted in support of applications for exploration licences by Mrs Martin on 14 May 2009 (ELA 3697) and by Mr Martin on 27 July 2009 (ELA 3747) in respect of different areas to the area covered by EL 7547. On being pressed to identify precisely the confidential information, Mr Martin referred to a works program emailed to Mr Steve Hughes at the Department on 7 July 2009 in support of Mrs Martin's exploration licence application ELA 3697. This works program was tendered in evidence. Mr Martin said that he repeated the confidential information in this works program in his exploration licence application ELA 3747 made on 27 July 2009. Mr Martin did not tender in evidence any other document alleged by Mr Martin to contain his confidential information and which was subsequently used by CWS. 41Mr Martin has not produced any evidence, either in the documents tendered or evidence from a departmental officer or representatives of CWS or Hetherington, that the works program for ELA 3697 or any other information, including confidential information, which Mr Martin or his wife or any of their consultants provided to the Department at any time, has been provided to CWS, or that CWS used any such information in its application for an exploration licence. Mr Martin has also not pointed out any particular statement or information in CWS's exploration licence application and supporting documents which Mr Martin says uses his confidential information. On the face of CWS's exploration licence application and supporting documents, there is nothing to suggest use of Mr Martin's work program for ELA 3697. 42Mr Martin also referred by name to various officers of the Department and said that they were persons with the necessary knowledge or skills who could have recognised the value of Mr Martin's confidential information for CWS's exploration licence application. Mr Martin then submits that the Court should draw the inference that those departmental officers must have passed on the confidential information to CWS. Again, there is no evidence in support of this allegation and I am unable to draw the inference suggested by Mr Martin. 43Mr Martin then notes that CWS's application for an exploration licence ELA 3759, was lodged on 7 August 2009. Mr Martin draws attention to the fact that CWS's exploration licence application was lodged only 11 days after Mr Martin said he lodged his exploration licence application on 27 July 2009 for a different area, which included, Mr Martin says, his confidential information. Mr Martin says that this coincidence of timing supports the Court drawing an inference that CWS must have used his confidential information in its application. Again, there is no evidence to support this allegation and I am unable to draw any inference from this coincidence in timing of lodgement of CWS's and Mr Martin's exploration licence applications. 44Mr Martin also claims that the Department provided to CWS departmental information on geology and mineralisation that was not available to the public or to Mr Martin. Again, Mr Martin has not pointed to any particular statement or information in CWS's exploration licence application or supporting documents which Mr Martin says uses non-public information provided by the Department to CWS. Mr Martin has not produced any evidence, in the form of documents or evidence from departmental officers or representatives of CWS or Hetherington, establishing that the Department provided such non-public information to CWS. 45Mr Martin says that the Court should draw the inference that the Department must have provided such non-public information by reference to some geological maps used by Lucknow in its exploration reports provided to the Department as a requirement of its exploration licence 6499. Mr Martin points out that Mr Tully Richards was for a part of the term of the former EL 6499, a director of Lucknow and later a consultant to Lucknow, and now Mr Richards is the sole director of CWS. I am unable to draw the inference Mr Martin alleges. Lucknow is a different legal person to CWS. Lucknow's exploration licence and hence its exploration reports provided to the Department predated CWS's application for an exploration licence. There is no evidence that Lucknow's maps were derived from non-public information provided by the Department. Furthermore, there is no evidence that any information that Lucknow possessed has been provided to CWS. Accordingly, I am unable to draw an inference that CWS obtained non-public information from the Department via Lucknow. 46For these reasons, the factual foundation for Mr Martin's claims concerning the supply to and use by CWS of confidential and non-public information have not been established. 47In any event, however, Mr Martin has not shown how the supply to and use by CWS of confidential information and non-public information in making CWS's exploration licence application causes the Minister's exercise of power to grant EL 7547 to be outside power and invalid.
Alleged failure to consider relevant matters 48Mr Martin's second ground of challenge is that the Minister failed to take into consideration, in deciding to grant EL 7547 to CWS, evidence that CWS and its "associated entities" had demonstrated since 2003 that CWS had no intention to explore in good faith the area covered by EL 7547. 49CWS had not itself previously held an exploration licence over the area of EL 7547 and therefore CWS could not have demonstrated, by any past conduct, a failure to explore in good faith. Rather, Mr Martin relies on the failure of Lucknow to complete fully the exploration work program required under the previous EL 6499. Mr Martin seeks to make Lucknow's failure to carry out fully the exploration work program required by EL 6499 as evidence that CWS has no intention to explore in good faith the same area now covered by EL 7547, because he says CWS and Lucknow are associated companies. Mr Martin's claim fails for three reasons. 50First, the evidence of the performance of Lucknow in carrying out the exploration work program required under EL 6499 was not a relevant matter that the Minister was bound to consider when determining CWS's application for an exploration licence. A matter is not a mandatory relevant consideration unless the statute expressly or impliedly, by reference to the subject matter, scope and purpose of the statute, states the matter to be one that the decision-maker is bound to consider in exercising the power: Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24 at 39-40. The Mining Act neither expressly nor impliedly requires the Minister, when determining whether to grant an exploration licence under s 22, to consider the performance of an associated company which previously had held a licence over the same area. Such a consideration may be permissible (that is, it may not be a mandatory irrelevant matter) but it is not a mandatory relevant matter. Hence, even if the Minister did not consider the performance of Lucknow under a previous exploration licence, such a failure does not result in invalidity of EL 7547: see like conclusion and reasoning in Midcoast Lime Co Pty Ltd v Minister for Primary Industries [2008] NSWSC 331 at [61]. 51Secondly, Mr Martin has not established on the evidence before the Court that CWS has no intention to explore in good faith the area covered by EL 7547. CWS's exploration licence application and supporting documents asserted that CWS intended to explore the area. CWS has not previously explored the area so no adverse inference from its past conduct is able to be drawn. That leaves drawing an inference from the past conduct of Lucknow. I am not satisfied that the evidence establishes that Lucknow's failure to complete fully the exploration work program required by the previous exploration licence EL 6499, in particular to complete the aeromagnetic survey, demonstrates that Lucknow had no intention to explore in good faith. That is not the only rational inference to be drawn. To the contrary, the evidence establishes that Lucknow had an intention to explore, but events transpired, including Lucknow's inability to raise the requisite funds through an IPO, that prevented Lucknow from carrying out its intention. 52Thirdly, even if Lucknow had demonstrated no intention to explore in good faith (which I do not find), Mr Martin has not established that such a lack of intention should be attributed to CWS. Mr Martin asserts that such attribution is possible because Lucknow and CWS are "associated entities". I do not agree. The commonality between Lucknow and CWS is that Mr Tully Richards was for some of the term of EL 6499 a director, and for the balance of the term a consultant to Lucknow, and also that Mr Richards was a director of CWS at the time of application for and grant of EL 7547. However, that commonality of directorship does not cause the conduct and intention (or more correctly lack of intention) of Lucknow to be able to be attributed to CWS.
Alleged invalidity of instrument of delegation or exercise of delegation 53Mr Martin's third ground of challenge is to the instrument of delegation of the power to grant an exploration licence and the exercise of the delegated power by Mr Hughes. Mr Martin challenges the instrument and exercise of delegation in four ways. 54First, Mr Martin claims the instrument of delegation was cancelled or withdrawn by a subsequent instrument of delegation. Secondly, Mr Martin claims that the instrument of delegation authorised, relevantly, the "Team Leader, Eastern Region" and that Mr Steve Hughes was the "Acting" Team Leader, Eastern Region. Thirdly, Mr Martin claims that there is no evidence that Mr Steve Hughes is a permanent officer of the NSW Public Service and able to act in the position of Acting Team Leader, Eastern Region and thereby exercise the Minister's delegated power. Fourthly, Mr Martin claims that the exercise of the delegated power miscarried because there is no evidence of the state of mind of Mr Hughes who purportedly made the decision. I reject each of these challenges to the instrument and exercise of delegation. 55First, the instrument of delegation is valid and effective. Section 363(1) of the Mining Act provides that the Minister may delegate any function of the Minister under the Mining Act (except the power of delegation) to any person. 56By an instrument of delegation dated 8 December 2004, Mr Kerry Hickey, Minister for Mineral Resources, pursuant to s 363(1) of the Mining Act, delegated the functions (including powers, authorities and duties) specified in Schedule 2 of the instrument. One of the functions specified in column 1 of Schedule 2 was, under s 22(1)(a), that, after considering an application for an exploration licence, the Minister may grant an exploration licence. The instrument of delegation stated that the functions specified in column 1 of Schedule 2 are delegated to the holder of any office within a delegate category specified in column 3 opposite that function and the holder of any office that may in the future replace an office so specified. For the function under s 22(1)(a), the delegate category specified was "D". The instrument of delegation states that a delegate category referred to in the instrument consists of the offices in the Department of Primary Industries listed for that category in Schedule 1. For delegate category "D" the offices listed in Schedule 1 were 12 in number and included relevantly "Team Leader, Eastern Region". 57Accordingly, by the instrument of delegation, the Minister delegated the function under s 22(1)(a) to grant an exploration licence to, amongst other persons, the Team Leader, Eastern Region. 58The instrument of delegation of 8 December 2004 was amended by a later instrument of delegation, dated 28 September 2009 and gazetted on 6 November 2009, made by the then Minister for Primary Industries, Ian Macdonald. 59The later instrument merely added another office, namely, "Deputy Director-General, Minerals & Energy" to the list of delegate categories for certain functions specified in Schedule 2 of the earlier instrument of delegation. The later instrument of delegation did not, contrary to Mr Martin's claim, repeal or withdraw the earlier instrument of delegation. Relevantly, therefore, the delegation of the Minister's function under s 22(1)(a) of the Mining Act to grant an exploration licence to, among others, the Team Leader, Eastern Region, remained in force after the later instrument of delegation was made. 60Mr Martin claims that the legislative amendments to the Mining Act in 2009 caused the earlier instrument of delegation to cease to have effect and that a fresh delegation had to be issued under the version of the Mining Act current at the time of exercising the function under s 22(1)(a) to grant EL 7547. That is incorrect. Section 30(1)(b) of the Interpretation Act 1987 provides that: "1. The amendment or repeal of an Act or statutory rule does not: (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule." 61I note that a similar argument was rejected in Martin v NSW Minister for Mineral and Forest Resources [2010] NSWLEC 131 at [16]. 62Mr Martin also claims that the title of the Minister has changed. This is true. By the Public Sector Employment and Management (Ministerial Changes) Order 2009 made on 8 December 2009 under the Public Sector Employment and Management Act 2002, any reference to the Minister for Mineral Resources is to be construed as a reference to the Minister for Mineral and Forest Resources. Such a change in the name of the Minister has no legal effect on the instrument of delegation made by the Minister for Mineral Resources on 8 December 2004. 63Mr Martin finally claims that the instrument of delegation ceased to be effective once Mr Kerry Hickey ceased to be the Minister. I reject that submission. The delegation was made by the office of the Minister and did not lapse because the holder of the office changed: see Martin v NSW Minister for Mineral and Forest Resources [2010] NSWLEC 131 at [17]. 64Secondly, Mr Martin's claim that the delegation only authorised the "Team Leader, Eastern Region" and not Mr Hughes who was the "Acting Team Leader, Eastern Region" is answered by s 48(2) of the Interpretation Act 1987 which provides: "If an Act or instrument confers or imposes a function on a particular officer or the holder of a particular office, the function may be exercised (or, in the case of a duty, shall be performed) by a person for the time being occupying or acting in the office concerned." 65I note a similar argument was rejected in Martin v NSW Minister for Mineral and Forest Resources [2010] NSWLEC 131 at [18]. 66Thirdly, Mr Martin has not established that Mr Steve Hughes is not employed by the Department or does not hold the position of Acting Team Leader, Eastern Region. Mr Martin made an oral call for Mr Hughes' public service employment number and that was provided by the Department to Mr Martin at the hearing. Mr Martin did not otherwise make any attempt to prove that Mr Hughes was not employed by the Department or not a public servant or not appointed as Acting Team Leader, Eastern Region. Mr Martin, has, therefore, failed to discharge the onus on him to prove his factual claim that Mr Hughes was not the Acting Team Leader, Eastern Region. 67Fourthly, Mr Martin has also failed to discharge the onus on him as the challenger of the decision to grant EL 7547 to show that Mr Hughes failed to turn his mind to matters relevant to the exercise of the power to grant EL 7547. Mr Martin reverses the onus when he says that there is no evidence of the state of mind of Mr Hughes. It is not for the Minister or his delegate to prove any particular state of mind; it is for Mr Martin to prove that he did not have a particular state of mind that he says is relevant to the exercise of the power to grant the exploration licence. 68For these reasons, I reject Mr Martin's challenge based on the instrument and exercise of delegation.
Alleged invalidity of CWS's application for exploration licence 69Mr Martin's fourth challenge is that CWS's application for an exploration licence was not an application in accordance with the Mining Act in that it did not contain all of the information required by the approved Form 3 for making an application. 70Section 13 of the Mining Act provides, so far as it is relevant: "(1) Any person may apply for an exploration licence. (4) An application for an exploration licence must: (a) specify the group or groups of minerals in respect of which the application is made, and (b) be lodged with the Director-General, and (c) be accompanied by the required information and the application fee prescribed by the regulations, and (d) if the application is for an exploration (mineral owner) licence with respect to privately owned minerals that have more than one owner, be made by all the owners. (5) The required information is as follows: (a) a description, prepared in the approved manner, of the proposed exploration area, (b) particulars of the financial resources and relevant technical advice available to the applicant, (c) particulars of the program of work proposed to be carried out by the applicant in the proposed exploration area, (d) particulars of the estimated amount of money that the applicant proposes to spend on prospecting in that area, (e) if the application is for an exploration (mineral owner) licence, evidence that the minerals to which the application relates are owned by the applicant, (f) any other information that is prescribed by the regulations." 71Section 382 of the Mining Act provides, so far as is relevant: "(1) An application or tender 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." 72The instrument of delegation by the Minister dated 8 December 2004 delegated the function under s 382 of the Mining Act of approval of forms of application under the Mining Act to delegate category "A", which includes the Deputy Director-General, Mineral Resources. 73On 8 July 2008, the Deputy Director-General, Mineral Resources approved Form 3 "Application for an Exploration Licence" version June 2008 as the approved form for making an application for an exploration licence under s 13 of the Mining Act. 74Q 11 on the approved form required specified information to accompany the application. Of relevance to Mr Martin's challenge are Q 11(a), (b) and (c). These provide as follows: "(a) Particulars of available financial resources (verifiable evidence of these resources must be in the form of: For Companies - a recent audited set of financial statements or the financial section from the most recent company report/s. For individuals - a formal letter from an independent accountant, bank or other financial institution, or a statement from a financial institution, indicating a credit balance sufficient to meet the applicant's/s' expenditure requirement in NSW. (b) Particulars of proposed program of work (including rationale, objectives and exploration methods. (c) A statement providing an estimate of the amount of money to be spent on prospecting." 75Next to each of paragraphs (a), (b), (c) was a column entitled 'Tick' with the symbol and a set of square brackets to enable the applicant to tick whether or not information requested in the paragraphs accompanied the application. 76CWS's application for an exploration licence lodged on 7 August 2009 used the approved Form 3. Each of the questions in Q 11(a), (b) and (c) were ticked in the space provided. The application form was accompanied by:
Alleged invalidity of execution of exploration licence 111Mr Martin's fifth challenge concerns the execution of the deed that is the exploration licence by CWS. CWS executed the deed solely by Mr Tully Richards, who is the director of CWS, signing it, with his signature being witnessed by Mr Morgan-Hunn. Mr Martin claims that this execution does not comply with s 127 of the Corporations Act. Mr Martin claims that because the deed has not been duly executed by CWS, the exploration licence is invalid. I reject this challenge for three reasons. 112First, the grant of an exploration licence is an exercise of the statutory power under s 22 of the Mining Act and is not contractual. The execution of the deed by the grantee of the exploration licence is not a necessary condition for the grant of the exploration licence to be effective: see likewise in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2010] NSWCA 353 at [84]-[86] where the Court of Appeal noted that it is the statutory provisions which effect the relevant transfer of an authority under the Mining Act and that the holder of the authority has statutory rather than contractual rights. 113It is true that the Minister has approved a deed as the approved form for an exploration licence under s 28 of the Mining Act. Section 28 provides: "An exploration licence is to be in the approved form and is to include the following particulars: (a) a description of the land over which it is granted, (b) a list of the group or groups of minerals in respect of which it is granted, (c) the conditions to which it is subject, (d) the period for which it is to have effect." 114On 29 September 1992, the then Minister for Natural Resources, Mr Causley, approved under s 28 that any exploration licences granted under the provisions of the Mining Act 1992 be in the attached form. The attached form was a deed which included the particulars required by s 28. The exploration licence granted to CWS was in the form approved by the Minister under s 28. 115However, the execution of the exploration licence in the approved form of a deed, by the person to whom the licence is granted, is not a condition precedent to the Minister's exercise of power under s 22 to grant an exploration licence or to the exploration licence taking effect. Section 27(a) of the Mining Act provides that an exploration licence takes effect on the date on which it is granted or on such later date, or on the occurrence of such later date, as the decision-maker may determine. 116Accordingly, the grant of EL 7547 was made and took effect irrespective of whether CWS executed the deed or not. Any defect in execution of the deed by CWS could have no bearing on the grant or the taking effect of EL 7547. EL 7547 remains valid regardless of any execution of the deed by CWS. 117Secondly, Mr Martin has not demonstrated that the deed was not validly executed by CWS. Section 127 of the Corporations Act provides for ways in which a company may execute documents, including deeds. Subsection (1) provides ways in which a company may execute a document without using a company seal while subsection (2) provides ways in which a company may execute a document using a common seal. Subsection (3) provides that a company may execute a document as a deed if the document is express to be executed as a deed and is executed in accordance with subsection (1) or (2). 118The benefit of a company executing a document in one of the ways specified in s 127(1) or (2) is that people will be able to rely on the assumptions in s 129(5) or (6) respectively for dealings in relation to the company. 119However, s 127 does not require that a company execute a document in one of the ways specified in s 127(1) or (2). Indeed, s 127(4) makes this clear, providing that s 127 "does not limit the ways in which a company may execute a document (including a deed)." 120Accordingly, the fact that a company executes a document (including a deed) in a way other than in accordance with s 127(1) or (2) does not, by that fact alone, cause the execution of the document to be ineffective in law. 121Thirdly, in this case, Mr Martin has not established that CWS's execution of the deed is not in accordance with s 127(1). CWS is a proprietary not a public company. A proprietary company can have a sole director (s 201A(1) of the Corporations Act). CWS has a sole director, Mr Tully Richards. A company is not required to have a common seal (s 7 of the Corporations Act). Hence, CWS was able to execute the exploration licence, which was expressed to be a deed, by having it signed by Mr Tully Richards, who is the sole director of CWS. Mr Martin has not shown that Mr Richards is not also the sole secretary of the company. 122Hence, Mr Martin has not shown that the execution by CWS of the deed by having the sole director, Mr Richards, sign the deed is not in accordance with s 127(1).
Alleged breach of good faith 123Mr Martin's sixth ground of challenge is that there is a fundamental principle of the Mining Act of good faith and that the grant of EL 7547 was in breach of this principle. I reject this challenge. 124First, whilst it might be true to say that any function conferred or imposed on the decision-maker under the Mining Act is required not to be exercised in bad faith, there is no overarching, fundamental principle of good faith in the Mining Act as claimed by Mr Martin. 125Secondly, Mr Martin has not particularised in his pleadings an allegation of bad faith. An allegation of bad faith is a serious matter involving personal fault of the part of the decision-maker. Such an allegation is not to be made lightly and must be clearly alleged and proved: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43]; (2002) 194 ALR 749. The relevant inquiry is directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith. It is the ultimate decision which must be shown to have been taken in bad faith: Minister for Immigration and Multicultural Affairs v SBAN [2002] FCAFC 431 at [8]. Mr Martin has not produced any evidence proving bad faith on the part of the Minister's delegate in granting EL 7547 in satisfaction of CWS's application. Mr Martin has failed to discharge the onus that rests on him to prove bad faith.
Alleged circumvention by CWS's application of the policy of renewal only with a 50% reduction in area 126Mr Martin's seventh ground of challenge is that the grant of a new exploration licence to CWS for the whole of the 36 units of the licence area circumvented a departmental policy in relation to the renewal of exploration licences. 127Mr Martin relies on a policy published by the department, including on its website, on renewal of exploration licences. There is no evidence of the status of the departmental policy, although on its face it states it is effective from 1 November 2004. I will assume that it was current at the time of CWS's application for an exploration licence and of the Minister (by his delegate) determining CWS's application. There is no evidence as to who in the department made the policy or under what authority the policy was made. The policy does not appear to have any legislative status, that is to say, it does not appear to have been made pursuant to any provision of the Mining Act or the Regulations. 128The policy is entitled, "Policy on renewal of exploration licence". The policy opens with the statement: "The Department has revised its policy in relation to renewal of exploration licences in order to assist exploration companies in their tenement management. There are no substantive changes to the previous policy." 129The policy then continues: "Exploration licences are usually granted for a period of two years, after which time they can be renewed for a further term (usually two years), with the opportunity for subsequent renewals. Normally, exploration licences are required to be reduced by 50% on each renewal (Section 114(6) of the Mining Act 1992). This is to ensure that exploration ground is 'turned over' and made available for other explorers to apply their own concepts, skills or technologies to such areas." 130The policy then turns to consider the renewal of exploration licences and the criteria that should be satisfied. 131Next, the policy deals with "special circumstances". The policy provides in this section: "Section 114(6) of the Mining Act provides that an exploration licence may be renewed for more than 50% of its area if 'special circumstances' exist. The criteria for establishing that special circumstances exist are:
Alleged denial of opportunity to apply for EL 7547 140Mr Martin's eighth ground of challenge is that he was unaware that the 36 unit area had become available on the expiry of EL 6499 on 13 May 2009 and did not know that he could have applied for an exploration licence over that area before CWS applied on 7 August 2009. Mr Martin says that he had checked a departmental website called MinView but that site had not been updated so as to record Lucknow's withdrawal of its renewal application on 13 May 2009 and hence the expiry of EL 6499. Mr Martin claims he was, therefore, denied the opportunity to make his own application during the window of availability of the area between 13 May and 7 August 2009. As a consequence, Mr Martin submits that EL 7547 is invalid. I reject this claim for four reasons. 141First, Mr Martin has not established any breach of the Mining Act in relation to the keeping of records to the exploration licences EL 6499 or EL 7547. 142There was no legal obligation under the Mining Act or the Regulations on the Director-General, the Minister or the Department to maintain or update the MinView database. Accordingly, any omission to update the MinView database by recording the withdrawal of Lucknow's application for renewal of EL 6499 and hence the expiry of EL 6499 (if this in fact did occur as Mr Martin claims) does not result in a breach of the Mining Act or the Regulations. 143In contrast, the Director-General is required under s 159 of the Mining Act to cause a record to be kept of every application for an authority that is duly made under the Act and every authority that is granted, renewed, transferred or cancelled under the Act (s 159(1)). The record is to be made available in such offices of the Department as may be prescribed by the Regulations, for inspection, free of charge, by members of the public (s 159(3)). 144In practice, the record required by s 159 of the Mining Act is contained in the Titles Administration System ("TAS") database. Graphical information on titles kept on the TAS database can be obtained from the TAS Map application. 145Extracts from the TAS database (the record kept under s 159) were tendered, one for the title EL 6499 and the other for the applicant/holder Central West Scientific Pty Ltd. The title dealing inquiry for EL 6499 shows Lucknow Gold Ltd to be the holder, a dealing of an application for renewal ("REN"), received on 28 November 2008, but that it was withdrawn, at the holder's request, on 13 May 2009 and determined (expired) on 13 May 2009. The extract for the applicant/holder Central West Scientific Pty Ltd shows that CWS made an application licence application, ELA 3759, on 7 August 2009 and that an exploration licence EL 7547 was granted on 20 May 2010 to CWS. Accordingly, the record required to be kept under s 159 of the Mining Act did record, relevantly, Lucknow making and withdrawing an application for renewal of EL 6499 and the determination (expiry) of the title on 13 May 2009 and CWS applying on 7 August 2009 for and being granted on 20 May 2010 a new exploration licence EL 7547. 146Mr Martin has not established, therefore, any breach of s 159 of the Mining Act in failing to keep the record of the dealings relating to EL 6499 and EL 7547. 147Secondly, Mr Martin did not claim, and there is no evidence, that he had a legitimate expectation or was otherwise denied procedural fairness in relation to viewing MinView rather than the TAS database. Unfortunately for Mr Martin, he chose to search MinView only, rather than also search the TAS database which is the record of titles required to be kept under s 159 of the Mining Act. However, Mr Martin does not claim, and in any event there is no evidence, that there were any representations or conduct of the Director-General, the Minister or departmental officers upon which Mr Martin relied that he should restrict his search to MinView and not search the TAS database. 148Thirdly, Mr Martin does not claim, and there is no evidence, that there were representations or conduct of the Director-General, the Minister or departmental officers that denied Mr Martin the opportunity to make an application for an exploration licence over the area previously the subject of EL 6499. Upon the expiry of EL 6499 on 13 May 2009, the area was available to any person to make an application for an exploration licence. The fact that Mr Martin said he was unaware that the area was unavailable and did not apply for it, did not result in any invalidity of EL 7547.
Alleged equitable interest in EL 7547 149Mr Martin's ninth ground of challenge is that, because CWS used Mr Martin's confidential intellectual property as a basis for CWS's application for EL 7547, Mr Martin has an equitable interest in EL 7547. I reject this claim. 150First, the factual basis for this ground of challenge has not been established for the reasons stated in relation to Mr Martin's first ground of challenge. 151Secondly, if any equitable interest in EL 7547 is to be created, it must be created by an instrument in writing, in accordance with s 160(1) of the Mining Act. Mr Martin, as a person claiming an equitable interest in EL 7547, could apply for registration of the interest under s 161(2) of the Mining Act. The Director-General may, if satisfied, that the applicant holds the interest concerned, register the document by which the equitable interest is evidenced (s 161(4) of the Mining Act). However, the registration of an interest under s 161 is not to be taken to be evidence of the existence of the interest (s 161(7)). Mr Martin has not adduced any evidence establishing the creation of an equitable interest in EL 7547. There is no document evidencing the creation of an equitable interest. Mr Martin has not applied for registration of his claimed equitable interest. 152Thirdly, even if Mr Martin were to have established an equitable interest in EL 7547, that has no effect on the validity of EL 7547. Indeed, the existence of an equitable interest in EL 7547 presupposes the validity of EL 7547, not its invalidity.
Alleged preferential treatment of CWS 153Mr Martin's tenth ground of challenge is that the Director-General in executing a business plan for minerals and coal resources in NSW and in offering 5 year exploration licences followed by 25 year mining licences is giving preferential treatment to certain persons, including CWS over other persons, including Mr Martin. I reject this claim. First, there is no evidence to establish the factual foundation for these claims. Secondly, even if Mr Martin's claims had a factual foundation, Mr Martin has not explained the legal basis upon which such facts would result in the invalidity of EL 7547.
Alleged monetary gain from grant of EL 7547 154Mr Martin's eleventh ground of challenge is that EL 7547 was granted by the Minister to CWS to facilitate personal monetary gain by the Minister and senior executives and junior operational level officers of his department. I reject this claim. There is absolutely no evidence at all supporting this claim.
Conclusion, costs and orders 155Mr Martin has failed in each of his grounds of challenge to EL 7547. The proceedings should therefore be dismissed. 156The proceedings are in Class 8 of the Court's jurisdiction. In this class, the usual order as to costs applies, that is that the unsuccessful party should pay the costs of the successful parties. The successful respondents seek an order for costs. The first respondent was legally represented and is entitled to an order for costs. The second respondent, CWS, was represented by an agent, Mr Hetherington. Accordingly, CWS is not entitled to an order for legal costs but it is entitled to be reimbursed for its out-of-pocket expenses: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403. 157Mr Martin did not contest that if he were to be unsuccessful the Court should make its usual order as to costs. However, Mr Martin submitted that the quantum of costs should be proportionate to the case. Mr Martin submitted that the Court should fix an amount of the costs and he nominated the sum of $10,000. 158In the circumstances of this case, costs should follow the event and Mr Martin should pay the costs of the first respondent and the disbursements of the second respondent. I do not consider that Mr Martin has established circumstances and an evidentiary basis for making a fixed sum costs order. Mr Martin did not claim, and there was no evidence adduced, that the respondents' conduct before or during the hearing increased the costs of the proceedings; to the contrary, the costs incurred by the respondents in the proceedings are a direct result of Mr Martin's conduct before and during the hearing. 159Mr Martin has also not pointed to any facts or circumstances, and has not established an evidentiary basis, supporting his claim that a usual costs order would not be proportionate to the nature, importance and complexity of the proceedings. A usual costs order requires costs to be assessed on a party/party basis and having regard to, amongst other things, whether or not it was reasonable to carry out the work to which the costs relate, whether or not the work was carried out in a reasonable manner and what is a fair and reasonable amount of costs for the work concerned (see s 364(1) and (2) of the Legal Profession Act 2004). These considerations facilitate proportionality of costs. 160The Court orders:
Appendix "A" MARTIN v STATE OF NEW SOUTH WALES LEC No. 80004 of 2010 Summary of grounds of challenge to EL 7547 stated in opening by Mr Martin
Martin
State of New South Wales and Central West Scientific Pty Ltd
(2009) 74 NSWLR 733
(1976) 135 CLR 110
(1994) 179 CLR 403
(1984) 154 CLR 349
(1986) 162 CLR 24
(2002) 194 ALR 749
(1999) 46 NSWLR 55
(2004) 61 NSWLR 707