Martin v The State of New South Wales - [2012] NSWLEC 182 - NSWLEC 2012 case summary — Zoe

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Martin v The State of New South Wales

[2012] NSWLEC 182

Land and Environment Court (NSW)|2012-06-20|Before: Lloyd AJ

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2012-06-20

Before

Lloyd AJ

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

Judgment 1Mr A G Martin is a civil engineer and mining prospector. He has held a number of exploration licences granted under the Mining Act 1992 which have expired. Mr Martin's application for the renewal of the licences have, in four instances, been refused; and in one instance his application for renewal has not been determined. An application by Mr Martin for a further exploration has not been determined. 2In these proceedings Mr Martin seeks number of declarations relating to the non-renewal and non-determination of his licence applications; in particular, declarations that there are no valid reasons why the applications should not be granted for the areas covered by the applications and the periods applied for. 3These are, of course, judicial review proceedings. It is, therefore, necessary for Mr Martin to show that the decision maker has made some legal error in exercising the discretion under the Act. In this case Mr Martin alleges that the decision maker acted without power, and denied him procedural fairness. If either allegation is made out, only then may the court exercise its own discretion and grant Mr Martin any relief. A mere preference by the court for a different result to that of the decision maker is an insufficient basis to interfere with the decision maker's discretion : Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at 626 - 628, Norbis v Norbis (1986) 161 CLR 513 at 535. 4The exploration licences in question are as follows: A. Exploration licence ("EL") 6949, previously held by Mr Martin. On 6 December 2010 the Minister refused Mr Martin's application for renewal. B. EL 7214, previously held by Mr Martin. On 23 February 2011 the Minister refused Mr Martin's application for renewal. C. EL 7143, previously held by Mr Martin. On 23 February 2011 the Minister refused Mr Martin's application for renewal. D. EL 7144, previously held by Mr Martin. On 23 February 2011 the Minister refused Mr Martin's application for renewal. E. EL 7009, held by Mr Martin with an expiry date of 7 February 2010. The Minister has not determined Mr Martin's application for renewal. F. Application for an exploration licence ("ELA") 4085 submitted by Mr Martin on 22 September 2010. The Minister has not determined the application. 5At the commencement of the hearing Mr Martin identified five questions for determination, as follows: (i) Whether email exchanges between Mr Martin and Ms Carol Hughes (the Minister's private secretary) was limited to EL 6949 or related to all of his applications. (ii) Whether the legislation empowers the "cancellation" of Mr Martins exploration licences on the basis of his failure to identify which units he wished to retain. (iii) Whether Mr Martin was implicitly granted renewals over 50% of the units by virtue of a request that he nominate the 50% of units he wished to retain, and whether in those circumstances it was unfair of the Department to have 100% of his units taken away. (iv) Whether the instrument of delegation to the relevant decision maker was invalid. (v) Whether the exercise of power by the relevant delegate was in error and thus invalid.

[2]

The Mining Act 1992 6Some understanding of the Mining Act is necessary in order to consider Mr Martin's claims. A person must not prospect for or mine any mineral except in accordance with an authorisation that is in force : s 5. The holder of an exploration licence may, in accordance with the conditions of the licence, prospect on the land specified in the licence : s 29(1). Any person may apply for an exploration licence : s 13(1). The power to grant an exploration licence is given to "the decision maker" : s 22. The "decision maker" is defined to mean, relevantly, "the Minister" for the purpose of such an application. The Minister may, however, delegate any function under the Act to any person : s 363(1). An exploration licence may be issued subject to conditions or unconditionally : s 26(1). An exploration licence takes effect on the date on which it is granted or at such later time as the decision maker may determine and ceases to have effect on the expiration of 2 years after the date on which it took effect, in the case of an exploration (mineral owner) licence; or relevantly in the present case on the expiration of such period (not exceeding 5 years) as the decision maker determines. 7The holder of an "authority" may apply for renewal of the authority : s 113(1). An "authority" is defined to include an exploration licence. After considering an application for renewal of an authority the decision maker may renew the authority or may refuse the application : s 114(1). Subsections (5) and (6) of s 114 state: "(5) The area of land over which an authority is renewed may differ from the area of land over which the renewal of the authority is sought, but not so as to include any land that was not subject to the authority immediately before the renewal. (6) The area of land over which an exploration licence may be renewed is not to exceed half the area over which the licence was in force when the application for renewal was made unless the decision maker is satisfied that special circumstances exist that justify renewal of the licence over a larger area." 8If an application for the renewal of an authority is not finally dealt with before the authority ceases to have effect, the authority continues to have effect until the application is finally disposed of : s 117(1). Finally, this Court has jurisdiction to determine any question or dispute as to the decision of a decision maker in relation to an application for the granting or renewal of any authority, or any question or dispute in connection with an interest (whether legal or equitable) in, or affecting, an authority : s 293; Land and Environment Court Act 1979, s 21C. 9I now turn to each of the licences in question in this case.

[3]

EL 6949 10This licence was held by Mr Martin until it expired on 28 November 2009. On 27 October 2009 Mr Martin lodged an application for renewal of the licence for a period of three years. Mr Martin claimed that there were special circumstances under s 114(6) of the Act to renew the licence over the whole of the exploration area covered by the licence which was then about to expire. By letter dated 15 October 2010, Chris Cottier of the Department advised Mr Martin as follows: "EXPLORATION LICENCE No. 6949 The Exploration Titles Committee has considered your application. The Committee advises the area for renewal be reduced by 50% to 14 units as you have failed to satisfy special circumstances criteria, specifically reporting conditions. The licence area was also not effectively explored. Please advice the units you wish to retain within 28 days from the date of this letter. Failure to provide this information, within the time frame listed above will result in a recommendation to the Minister to refuse the application. For further information, please contact the undersigned on 4931 6462." 11On 8 November 2010 Mr Martin sent an email to the Minister and the Department as follows: "Dear Minister,

I would very much appreciate a meeting ASAP with you and with Dr Richard Sheldrake and my technical advisor Dr Richard Haren and myself.
The topic for discussion are my various exploration licences, including EL 6949 that has not been renewed to date as well as the status of my exploration licence application ELA 4085 made on 22 September 2010." 12On 15 November 2010 Chris Cottier sent a letter to Mr Martin in the following terms: "EXPLORATION LICENCE No. 6949 The Department has considered your application and, as you have not provided a list of the units you wish to retain, it is proposed to refuse your application. Any representations you wish to make in this regard should be forwarded within 14 days from the date of this letter to the person whose name is listed at the top of this letter. Any documentation or representations should be made to the person listed at the address listed below. Failure to provide this information within the time frame listed above, will result in a recommendation to the Minister to refuse this application. For further information please contact the undersigned on 4931 6462. Yours faithfully Chris Cottier for Director General" 13On 1 December 2010, Ms Carol Hughes, private secretary to the Minister, sent an email to Mr Martin as follows: "Thank you for your email to the Minister requesting a meeting. The Minister has requested a Department representative meet with you to discuss your issues. The Department will be in touch shortly to organise a mutually convenient time for this meeting." 14Despite the terms of this email Mr Martin's email of 8 November 2010 and before any meeting was held between Mr Martin and the Department's representative, Chris Cottier on 30 November 2010 recommended that Mr Martin's application for renewal of EL 6949 be refused. On 6 December 2010, despite the terms of the email of 1 December 2010, the recommendation was approved by the Minister's delegate, Mr Steve Hughes. On 9 December 2010 Chris Cottier sent a letter to Mr Martin advising him of the decision. 15In view of the legitimate expectation on the part of Mr Martin generated by the email from Ms Carol Hughes, namely, that no decision would be made in relation to his application without a meeting first taking place, the State accepts that the decision to refuse Mr Martin's application is liable to be set aside on the ground that he has been denied procedural fairness. The State accordingly accepts that the Court should make a declaration that the decision to refuse Mr Martin's application for the renewal of EL 6949 was invalid and remit that aspect of these proceedings to the Minister so that a fresh decision can be made on the application. It is thus unnecessary to consider the various other allegations of impropriety on the part of the Department, set out in paragraphs 1 to 33 of Mr Martin's Points of Claim, practically none of which are supported by any evidence.

[4]

EL 7214 16This licence, previously held by Mr Martin, expired on 9 October 2010. On 30 August 2010 (before the expiry of the licence) Mr Martin lodged an application for renewal of the licence over the whole of the exploration area it covered, claiming that there were special circumstances within s 114(6) of the Act to renew the licence over the whole area. The minutes of the Exploration Titles Committee within the Department accepted a recommendation by David Forster, Mineral Exploration Assessor and Colin Wood, Principal Geologist, that "the application for 100% renewal is not supported on the grounds that the holder failed to undertake a substantial proportion of the proposed work program at application in 2008 and in consequence failed to satisfy renewal policy requiring effective exploration of the full licence area." 17On 24 December 2010 Chris Cottier of the Titles Branch of the Department sent a letter to Mr Martin advising him of the decision of the committee. The letter continued: "Please advise the units you wish to retain by 27 January 2010 [sic]." Failure to provide this information within the time frame listed above, will result in a recommendation to the Minister to refuse the application. For further information please contact the undersigned on 4931 6462." 18Mr Martin did not respond to this letter. Chris Cottier then sent a further letter to Mr Martin dated 2 February 2011, as follows: "EXPLORATION LICENCE APPLICATION NO 7214 Reference to made to your application. The Department has considered your application and, as you have not provided a list of the units you wish to retain, it is proposed to refuse your application. Any representations you wish to make in this regard should be forwarded by 16 February 2011 to the person whose name is listed at the top of this letter. Any documentation or representations should be made to the person listed at the address listed below. Failure to provide this information within the time frame listed above will result in a recommendation to the Minister to refuse this application. For further information, please contact the undersigned on 4931 6462." 19Mr Martin did not respond to this letter by 16 February 2011. On 21 February 2011 the Minister's delegate decided to refuse Mr Martin's application for renewal of this licence and on 23 February 2011 the Acting Team Leader Easter Region, Mr Rodney George, used his delegation to formally refuse the application for renewal of the licence in accordance with the provisions of s 114(1)(b) of the Act. On 24 February 2011, Chris Cottier (for the Director General) sent a letter to Mr Martin which relevantly states: "In accordance with the provisions of section 114(1)(b) of the Mining Act 1992, the Minister has refused the application for renewal lodged in respect of Exploration Licence No. 7214, as you failed to nominate the 2 units you wished to retain in the required time or provide any further justification for special circumstances." 20Mr Martin, however, relies on the email exchange which occurred on 8 November and 1 December 2010 to contend that, for the same reason that the decision to refuse the renewal of EL 6949 is to be set aside, so too should the decision to refuse the renewal of EL 7214 be set aside. Mr Martin relies upon that part of his email of 8 November 2010 which states : "The topic for discussion are my various exploration licences, including EL 6949 ...", and upon the reply by the Minister's private secretary which relevantly states : "the Minister has requested a Department representative meet with you to discuss your issues." Mr Martin submits that, since the email exchanges were not limited to EL 6949 but relate to his "various exploration licences" and his "issues", then as with the concession made by the State in relation to EL 6949, so too did he have a legitimate expectation that a meeting would take place before any decision could be made on his various applications for licence renewals. 21The facts in this instance, however, are somewhat different to those which occurred in relation to EL 6949. In that matter the response from the Minister's private secretary was sent to Mr Martin after he had received the letter of 15 November 2010 from Chris Cottier advising him that it was proposed to refuse his application. In the present instance, the letter to the same effect from Chris Cottier to Mr Martin was sent to him on 24 December 1010, that is, after the date of the email from the Minister's private secretary. Moreover, the second letter from Chris Cottier to Mr Martin noted at [18] above is dated 2 February 2011. Both of these letters, of course, post-date the email from the Minister's private secretary. The question then becomes whether this correspondence removed or displaced the reasonable expectation engendered by the exchange of emails, or otherwise amounted to a denial of procedural fairness. 22Legitimate expectation is part of the duty to accord procedural fairness, it being accepted that where the exercise of statutory powers affects a persons rights or interests in a direct or immediate way there is a common law duty to act fairly : Kioa v West (1985) 159 CLR 550 at 584. 23It has been held, however, that the "legitimate" as used in the expression "legitimate expectation" does not mean an entitlement in law but rather in the lesser sense of "reasonable" : Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6, 214 CLR1 at [32], [61], [92], [105]. That is, the doctrine of "legitimate expectation" does not give rise to substantive rights, but rather to procedural rights : Ex parte Lam, at [148]. The concept of legitimate expectation is but part of the doctrine of procedural fairness. As Gleeson CJ explained in Ex parte Lam, at [34] : "But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. ... The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed." 24Similarly, McHugh and Gummow JJ also said, in the same case, at [61] : "Not every expectation or hope which might be entertained by a 'reasonable man' will necessarily attract the doctrine." 25Moreover, as Hayne J also explained in Ex parte Lam at [111] : "But the focus of inquiry must remain on the fairness of the procedures adopted by the Department. ... If the procedure was fair, reference to expectations, legitimate or not, is unhelpful, even distracting." 26In this instance Mr Martin was given an ample opportunity to present his case on his renewal application. The Department wrote to Mr Martin on 24 December 2010, after the exchange of emails, and was clearly told what information the Department required and what the consequence would be if he failed to provide it. The Department wrote to Mr Martin again on 2 February 2011 and told him what the Department's position was and again invited him to make any representations that he wished and that any failure to do so would result in a refusal of his application. Mr Martin did not respond. This correspondence clearly superceded the email exchanges that had earlier occurred. 27In those circumstances no procedural unfairness occurred. I respectfully adopt what Gleeson CJ said in Ex parte Lam at [36], which applies equally in the present case : "Nor is it shown that he lost an opportunity to put any information or argument to the decision - maker, or otherwise suffered any detriment." 28I also respectfully adopt, as applicable also in the present case, what Gleeson CJ also said at [38] : "No practical injustice has been shown. The applicant lost no opportunity to advance his case." 29Procedural fairness requires a decision maker to give a sufficient opportunity to any person directly affected by the decision to present any facts and submissions before the decision is made. That was done in this case. Mr Martin was given an opportunity to make any representations that he wished, but he did not do so. 30I thus accept the State's submission that in these circumstances, to find that a breach of fairness occurred would impermissibly elevate the legitimate expectation said to have arisen to a substantive legal right. 31In passing, I note that Mr Martin in his Points of Claim makes a number of other allegations concerning his application to renew the licence, but which were not addressed in submissions, are not supported by any evidence and which would not in any event provide a basis to invalidate the decision of the Minister's delegate. As to an allegation that there was no valid delegation, see paragraphs [53] to [57] below. As to an assertion that the Court should make its own determination on Mr Martin's application to renew the licence, the Court's jurisdiction to do so has not been identified.

[5]

EL 7143 32This exploration licence, previously held by Mr Martin, expired on 27 May 2010. On 24 April 2010 Mr Martin lodged an application for renewal of the licence for the whole of the area covered by it, claiming that there were special circumstances within s 114(6) of the Act. 33The minutes of the meeting of the Department's Exploration Titles Committee held on 15 December 2010 show that the application for 100% renewal was not supported on the grounds that "the holder failed to undertake a substantial proportion of the proposed work program at application in 2008, and in consequence failed to satisfy special circumstances renewal policy requiring effective exploration of the full licence area". 34By letter dated 24 December 2010, Chris Cottier (of the Titles Branch of the Department) advised Mr Martin of the decision of the committee and its reasons. The letter asked Mr Martin to advise by 27 January 2010 [sic] what units he wished to retain, and that failure to provide the information would result in a recommendation to the Minister to refuse the application. Mr Martin did not do so. 35On 2 February 2011 Chris Cottier (on behalf of the Director General) sent a further letter to Mr Martin, as follows: "EXPLORATION LICENCE APPLICATION NO 7143 Reference is made to your application. The Department has considered your application and, as you have not provided a list of the units you wish to retain, it is proposed to refuse your application. Any representations you wish to make in this regard should be forwarded by 16 February 2011 to the person whose name is listed at the top of this letter. Any documentation or representations should be made to the person listed at the address listed below. Failure to provide this information within the time frame listed above will result in a recommendation to the Minister to refuse this application. For further information, please contact the undersigned on 4931 6462." 36Mr Martin did not reply to the letter by 16 February 2011. On 23 February 2011 Mr Rodney George, Acting Team Leader, Eastern Region, by delegation from the Minister refused Mr Martin's application for renewal of the licence in accordance with s 114(1)(b) of the Act. Mr Martin was formally advised of the refusal by letter dated 24 February 2011. 37Mr Martin again relies upon the exchange of emails noted at [11] and [13] above to say that he was promised an opportunity to present his case and put any arguments he wished to a Departmental representative, and that the topic for discussion were his various exploration licences and not just EL 6949 and ELA 4085 mentioned in his email of 8 November 2010. However, as was the case with EL 7214, the letters from the Department to Mr Martin of 24 December 2010 and 2 February 2011 post date the exchange of emails and supercede them. For the reasons outlined at [22] to [30] above, Mr Martin was not deprived of an opportunity to present his case and put any arguments that he wished in support of his application. On the contrary, he was specifically invited to do so and was expressly told what the consequences would be if he did not do so. There was nothing unfair or unreasonable about what occurred. As Gleeson CJ said in Ex parte Lam at [38] : "No practical injustice has been shown. The applicant lost no opportunity to advance his case." 38Mr Martin's points of claim raise various other assertions concerning his application to renew the licence but were not addressed in his submissions, were not supported by evidence and would not, in any event, provide a basis to invalidate the decision. Again, as to the validity of the exercise of power by the Minister's delegate, see paragraphs [53] to [57] below.

[6]

EL 7144 39This licence expired on 27 May 2010. On 23 April Mr Martin lodged an application to renew the licence for the whole of the exploration area covered by the licence, claiming that there were special circumstances to do so within s 114(b) of the Act. 40In a Departmental minute paper prepared by Colin Wood, Principal Geologist dated 27 November 2010, Mr Wood concluded that the holder had failed to conduct effective exploration over the full licence area and recommended a standard 50% renewal of the licence. The minutes of the Department's Exploration Titles Committee meeting held on 15 December 2010 state that the application for renewal is not supported on the grounds that the holder failed to undertake a substantial portion of the proposed work program at application in 2008 "and in consequence failed to satisfy special circumstances renewal policy requiring effective exploration of the full licence area". 41On 24 December 2010, Chris Cottier of the Titles Branch of the Department sent a letter to Mr Martin advising him of the committee's decision. He asked Mr Martin to advise "by 27 January 2010 [sic]" the units he wished to retain, and that failure to provide this information within that time frame will result in a recommendation to the Minister to refuse the application. Mr Martin did not do so. 42On 2 February 2011 Chris Cottier on behalf of the Director General sent a letter to Mr Martin as follows: "EXPLORATION LICENCE APPLICATION NO 7144 Reference is made to your application. The Department has considered your application and, as you have not provided a list of the units you wish to retain, it is proposed to refuse your application. Any representations you wish to make in this regard should be forwarded by 16 February 2011 to the person whose name is listed at the top of this letter. Any documentation or representations should be made to the person listed at the address listed below. Failure to provide this information within the time frame listed above will result in a recommendation to the Minister to refuse this application. For further information, please contact the undersigned on 4931 6462." 43Again, Mr Martin did not respond to this letter. On 23 February 2011 Mr Rodney George, Acting Team Leader, Eastern Region, by delegation from the Minister, refused the application for renewal. Mr Martin was advised of this fact by letter dated 24 February 2011. 44As with the refusal of his renewal applications for EL 7214 and 7143, Mr Martin relies upon the exchange of emails noted at [11] and [13] above as encompassing also this application for renewal. For the same reasons noted at [22] to [30] and at [37] above, I find that Mr Martin was given an adequate opportunity to present his case and put any arguments that he wished in support of his application, that there was no unfairness in the circumstances. That is, the failure to meet Mr Martin's expectation of a meeting does not reasonably found a case of denial of natural justice. 45As with the previous applications for renewal of his exploration licences, Mr Martin did not address any of the remaining assertions in his points of claim, as to which, again, there is a lack of evidence and which would not in any event provide a basis to invalidate the decision.

[9]

GENERALLY 50Paragraphs [10] to [49] above deal with issue (i) identified by Mr Martin at [5], as question for determination. 51As to issue (ii) identified by Mr Martin, the Act clearly empowers to Minister to do what he did : s 114(1). 52As to issue (iii), none of the applications for renewal were impliedly granted, either in part or at all. One has only to look at the letters advising Mr Martin of the decision in each case to see that the applications for renewal were wholly refused. They can be read in no other way. Moreover, there can have been no implied renewals of 50% of the units if it is not known which 50% the supposed renewal they were intended to cover. That is even if it could be said that there was an implied renewal of 50% of the units, then any such implied renewal would be void for uncertainty. The question as to whether there was any lack of fairness is examined at [22] to [30] above. Moreover, the legislation grants the power to determine such applications to the decision maker, not the Court. 53Issues (iv) and (v) overlap and relate to the power of delegation under the Act. Section 363(1) states that the Minister may delegate any function under the Act (except his power of delegation) to any person. By an instrument of delegation made by the Minister on 30 November 2010, the Minister delegated "to each person holding (including a person who is for the time being occupying or acting in) an office within the delegate category (as established in Schedule 1) identified in column 3 of Schedule 2 for the function concerned". 54The schedule to the instrument of delegation lists ( in Schedule 1) a number of office holders in the Department, including "The Team Leader, Eastern", as "Delegate Category D". Part 7 of Schedule 2 is headed "Renewal Transfer and Cancellation of Authorities", under which delegate Category D is listed in column 3 opposite section 114(1); and in column 2 ("Summary of Functions and Limits on Delegations") appears the following : "The Minister, after considering an application for the renewal of an authority, may renew the authority, or may refuse the application. Limit : In respect of exploration licences only". 55It follows that the Team Leader, Eastern had delegated authority from the Minister to renew or to refuse applications for the renewal of an authority. The instrument of delegation was not only to each person holding the relevant office, but is expressly stated as "including a person who is for the time being occupying or acting in" an office within the delegate category. 56Moreover, s 48(2) of the Interpretation Act 1987 states: "(2) If an Act or instrument confers or imposed 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 the person for the time being occupying or acting in the office concerned." 57In the present case the decisions to refuse the application to renew the licences were made by the Acting Team Leader, Eastern Region, Mr Rodney George. The exercise by him of the delegation was lawful. It is unclear whether Mr Martin also challenges the appointment of Mr George to that position. The onus is, of course, on the applicant to prove his case. Mr Martin had not produced any evidence to suggest that Mr George did not or does not hold the post of Acting Team Leader, Eastern. I conclude, therefore, that there is nothing irregular or erroneous in the exercise by Mr George of his power as the Minister's delegate.