Minister for Resources and Energy v Gold and Copper Resources Pty Ltd

Court of Appeal (NSW)|2015-03-25|Before: Ward JA, Bergin CJ, Biscoe J

Background

In 2009 Newcrest and a related company (Newcrest Operations) held exploration licences issued pursuant to the Mining Act over an area surrounding the Cadia gold mine, south-west of Orange. Newcrest held EL 3856, while Newcrest Operations held EPL 1024. Both licences were due to expire on 20 May 2009. (In general, it is not necessary to distinguish between Newcrest and Newcrest Operations and I use "Newcrest" to refer to both. Where necessary, I refer specifically to the companies separately.)
On or about 24 March 2009, Newcrest applied to the Minister to renew both licences for a term of two years. On 20 May 2009, Newcrest sent to the Minister replacement front pages for the renewal forms, in each case seeking an extension of the licence for five years instead of two years. A Departmental officer replaced the first page of each renewal application with the substitute page.
The Minister renewed EPL 1024 on 8 October 2009 for a period of five years (2009 Renewal Decision). On 14 March 2011, the Minister purported to renew EL 3856 for a term expiring on 20 May 2014 (2011 Renewal Decision). Although the 2011 Renewal Decision was made after the date of expiry of EL 3856, the licence continued in force pending the making of the decision: Mining Act s 117(1).

The First Proceedings

The Second Proceedings

On 24 August 2012, Gold & Copper commenced a second set of proceedings in the L & E Court pursuant to s 293(1)(q)(ii) of the Mining Act. In those proceedings, Gold & Copper challenged the 2009 Renewal Decision in respect of EPL 1024. The proceedings were brought well outside the three months time limit for a challenge to the renewal of a licence specified by s 137(1) of the Mining Act.
Gold & Copper's challenged to the 2009 Renewal Decision was based primarily on the contention that Newcrest Operations had never lodged a valid renewal application because it had caused the removal and replacement of the first page of the application form. Pain J rejected this contention in a judgment delivered on 1 April 2014: Gold and Copper Resources Pty Ltd v Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30. Gold & Copper duly filed a notice of appeal from her Honour's decision. Since Pain J rejected Gold & Copper's contention on its merits, she did not find it necessary to consider whether Gold & Copper was barred from bringing the proceedings in any event because they were instituted outside the three months limitation period.

The Current Proceedings

On 17 January 2014, before Pain J delivered her judgment in the 2009 Renewal Decision proceedings, the Minister made the 2014 Renewal Decision. The Minister renewed EL 3856 for a term expiring on 20 May 2014. In making the 2014 Renewal Decision, the Minister acted in purported compliance with the order made by Pain J in her judgment of 17 August 2013, requiring the Minister to determine Newcrest's 2009 renewal application according to law. The 2014 Renewal Decision was published in the New South Wales Government Gazette No 35 on 11 April 2014. Although nothing turns on it, the 2014 Renewal Decision was made about five years after Newcrest lodged its renewal application
On 26 June 2014, Gold & Copper commenced the current proceedings in the Class 8 jurisdiction of the L & E Court. It sought "judicial review" of the 2014 Renewal Decision and claimed a declaration that the 2014 Renewal Decision was void and an order setting aside EL 3856. There is no dispute that the current proceedings are "proceedings for or in the nature of judicial review in the … Class 8 jurisdiction of the [L & E] Court" within UCPR r 59.1(1)(b).
The Summons included a statement of the "Background" to Gold & Copper's claim for relief. This section of the Summons recited the history of EL 3856, including Newcrest's 2009 renewal application, the 2011 Renewal Decision, the setting aside of the 2011 Renewal Decision by the L & E Court and the 2014 Renewal Decision. The Summons stated that Newcrest's 2009 renewal application sought a renewed licence for 43 units, the same number as in the exploration area for EL 3856 under the renewal licence which expired on 20 May 2009. The only ground identified for the relief sought in the Summons was the allegation in the Paragraphs that the 2009 application was invalid by reason of the removal of the first page of the application and the substitution of a different page. This of course was the ground that Pain J had rejected in her judgment of 1 April 2014, albeit in relation to the 2009 Renewal Decision concerning EPL 1024.
Simultaneously with service of the Summons, Gold & Copper served on the Minister a notice pursuant to UCPR r 59.9(2) requiring the Minister to provide a copy of the 2014 Renewal Decision and a statement of reasons for the Decision. The Minister did not comply with the notice.
On 15 July 2014, Newcrest filed a notice of motion seeking an order pursuant to UCPR r 13.4(1) that the proceedings be dismissed or, alternatively, an order that the proceedings be stayed until further order pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (CP Act). That motion was listed for hearing in the L & E Court on 15 September 2014.
On 12 September 2014, Gold & Copper's solicitors sent an email to the solicitors for Newcrest and the Minister, accepting that the Paragraphs could not be maintained. The email suggested, however, that the balance of the Summons should not be struck out, particularly since the Minister had not complied with the r 59.9 notice. The solicitors proposed that the Paragraphs be struck out, but that the Minister should provide reasons for the 2014 Renewal Decision. Thereafter the matter could be returned to the list for directions.
This proposed course of action was apparently not acceptable to Newcrest or the Minister. Accordingly, Gold & Copper filed a motion in Court at the hearing on 15 September 2014. The motion sought orders that the Minister provide to Gold & Copper and Newcrest a copy of the 2014 Renewal Decision (to renew EL 3856) and a statement of the reasons for that Decision, prepared in accordance with UCPR r 59.9(3).
The primary Judge delivered the Primary Judgment on 17 September 2014.
As has been noted, on 4 December 2014, the Minister renewed EL 3856 pursuant to s 114(1)(a) of the Mining Act for a further term of five years expiring on 20 May 2019.
On 19 March 2015, a differently constituted Court of Appeal dismissed Gold & Copper's appeal from Pain J's decision of 1 April 2014 in which her Honour rejected Gold & Copper's challenge to the 2009 Renewal Decision in respect of EPL 1024: Gold & Copper Resources Pty Ltd v Minister for Resources and Energy, Special Minister [2015] NSWCA 57. Newcrest and the Minister each filed a notice of contention on the ground that the appeal was brought outside the three month period after gazettal prescribed by s 137(1) of the Mining Act and was therefore barred. The Court of Appeal did not consider it necessary to determine the notice of contention: Gold & Copper Resources Pty Ltd v Minister for Resources and Energy, Special Minister [2015] NSWCA 57 at [7], [63].

The Argument

At the outset of the hearing before the primary Judge, counsel for Gold & Copper informed his Honour that Gold & Copper accepted that the Paragraphs of the Summons were liable to be struck out on what he described as "Anshun estoppel" and "issue estoppel" grounds. (The first ground is a reference to Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589.) Clearly counsel was conceding that the judgment of Pain J of 1 April 2014 dismissing the challenge to the 2009 Renewal Decision foreclosed Gold & Copper from pursuing in the current proceedings the same argument rejected by her Honour. The concession was made notwithstanding that the current proceedings involve a different licence and a different applicant for renewal.
In the course of argument the following exchange took place: "MR ALEXIS: Yes. So, your Honour, the issue now seems to be what should happen to the proceedings, and your Honour no doubt is thinking, 'Well, what's left in them? They ought to be dismissed.' But, your Honour, we would be seeking to have the proceedings adjourned so as to enable the Minister to respond to the notice that was issued pursuant to part 59 rule 9 of the UCPR. When the summons was issued, that was a notice to have the Minister provide a copy of the decision the subject of the proceedings and to provide a statement of reasons for the decision. If your Honour has the outline of submissions, your Honour will see in paragraph 2 and 3 of the introduction that we have referred to the notice that was served on the Minister when the summons was filed and served on 26 June, and we would seek compliance with that notice before directions are then made or the proceedings are then dismissed. And I say that quite candidly to hopefully encourage a helpful response on behalf of the Minister, because I accept that it may well be that, once a copy of the decision is provided and reasons for the decision are provided, they may be unassailable and, therefore, the proceedings will be dismissed by consent. And so only a short adjournment is sought so that we get the benefit of a response to the notice and, of course, as your Honour would expect, we need to plead a case or the summons will be dismissed."
Senior counsel for each of the Minister and Newcrest submitted to the primary Judge that the L & E Court had no power to make an order under UCPR r 59.9 in the absence of properly constituted judicial review proceedings. Since the only ground stated in the Summons for judicial review of the 2014 Renewal Decision had been struck out, so they argued, the proceedings were not properly constituted and should be dismissed as an abuse of the process of the Court.
In response, Gold & Copper's counsel submitted that at the time it served the r 59.9 notice on the Minister, the proceedings were properly constituted. The subsequent concession that the Paragraphs of the Summons were liable to be struck out, did not remove the L & E Court's power to order the Minister to comply with the notice.
Later in the argument, the primary Judge asked counsel whether Gold & Copper was "actually on a fishing expedition". The response was as follows: "Your Honour, I would have to concede that we are. But I should say, your Honour, that one of the critical matters that caused the earlier decision to be set aside and for the application to renew the exploration licence to be remitted back to the decision maker was the failure of the decision maker to consider special circumstances. And that arises … under section 114[(6)] of the Mining Act … It follows, [from s 114(6)], your Honour, that an exploration licence may not be renewed for more than half the number of units, which is the case here, unless special circumstances are available. Now, it was the failure to consider that which caused the relevant invalidity on the last occasion, which caused the remittal of the application back to the decision maker. Without having the decision and, importantly, the reasons, it is impossible for the applicant to know whether or not the decision maker was satisfied as to the existence of special circumstances." (Emphasis added.)
Towards the end of the argument this exchange occurred: "HIS HONOUR: … Well, then can I just finally conclude by raising the matter of procedure at this point? On the one hand, [Gold & Copper] concedes that parts of the summons should be struck out, but that would only seem to have any force if, indeed, it were to be given some leeway in the issuing - or if an order were to be made that the Minister provide these reasons. If I decline to make that order, then there is no reason, is there, Mr Alexis, why the proceeding shouldn't be dismissed? MR ALEXIS: That would be so. Our motion seeks the order for reasons and for the proceedings to be adjourned to a date that postdates the provision of those reasons and, as I indicated earlier, we would seek to amend the summons in light of those reasons or we would not pursue the proceedings any further. And the further directions hearing would be the occasion for the further course of the proceedings in one direction or the other. HIS HONOUR: So if orders such as you're seeking were to be made, then the only other order I would make on that scenario at the moment would be to strike out those parts of your summons; is that right? MR ALEXIS: Yes. And so, of course, that would mean that 59.4 of the rules would not be satisfied, albeit it only for a brief period, in consequence of which an amended summons would have to be brought forward in light of the reasons." (Emphasis added.)

The Primary Judgment

The primary Judge recorded (at [18]) that Gold & Copper's sole ground of challenge to the 2014 Decision was precisely the same argument it unsuccessfully sought leave to present in the proceedings challenging the 2011 Renewal Decision in respect of EL 3856. It was also precisely the same point that had been determined against Gold & Copper in the proceedings challenging the 2009 Decision in respect of EPL 1024. His Honour further recorded (at [19]) that Gold & Copper conceded that issue estoppel and Anshun estoppel prevented it from pursuing the ground for judicial review identified in the Paragraphs.
Despite the concession, the primary Judge considered for himself whether the Paragraphs of the Summons were barred by reason of issue estoppel and Anshun estoppel. His Honour held (at [21]) that an issue estoppel as between Gold & Copper and the Minister and Newcrest arose by virtue of the proceedings determined by Pain J in relation to EL 3856. The issue estoppel arose, according to his Honour, because the validity of Newcrest's renewal application was essential to Pain J's decision to quash the Minister's 2011 Renewal Decision. This was so notwithstanding that Pain J refused Gold & Copper leave to amend its pleadings to allege that the application was invalid. In any event, so the primary Judge held (at [24]), Gold & Copper's failure to raise the invalidity argument in a timely fashion gave rise to an Anshun estoppel.
The primary Judge held (at [22]) that an issue estoppel arose between Gold & Copper and the Minister by reason of Pain J's express rejection of Gold & Copper's challenge to the validity of Newcrest Operation's application to renew EPL 1024. That decision was based squarely on Pain J's holding that the application to renew EPL 1024 was valid despite the substitution of pages comprising the application form. (The issue estoppel did not apply between Gold & Copper and Newcrest, because Newcrest Operations, as distinct from Newcrest, was party to this litigation.)
The primary Judge expressed the view (at [28]) that keeping the proceedings alive is critical to any new challenge that Gold & Copper might wish to make to the 2014 Renewal Decision. He said that this followed the limitation period of three months for the commencement of a challenge to the 2014 Renewal Decision from s 137(1) of the Mining Act. Thus if the current proceedings were dismissed, Gold & Copper could not press a challenge in new proceedings because they would be barred by s 137(1) of the Mining Act.
The primary Judge recorded (at [30]) that the Minister and Newcrest had made two submissions, as follows: "(a) The Court has no power to make a r 59.9(4) order unless, a proceeding for judicial review has been properly commenced. (b) This proceeding has not been properly commenced and is an abuse of process because under r 59.4(c) the summons had to state the grounds on which relief was sought and the only ground that it stated was barred by an issue estoppel or an Anshun estoppel."
His Honour observed (at [32]) that r 59.9, which has been in force since 2013, does not go as far as s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The latter creates a right to obtain a statement of reasons for a decision to which the Act applies, irrespective of whether the applicant has instituted judicial review proceedings. By contrast, r 59.9 applies only in existing proceedings for judicial review in which relief is sought in respect of a decision of a public authority.
The primary Judge cited (at [36]-[42]) a number of authorities that stressed the "beneficial nature, importance and utility" of mechanisms such as r 59.9. Similar provisions that allow for a court to order a decision-maker to give reasons. He pointed out that an order requiring the decision-maker to provide reasons is often the only way of revealing whether the impugned decision was made lawfully or unlawfully.
The primary Judge accepted (at [46]) that although the Summons stated a ground "not of itself manifestly hopeless", the ground was barred by issue estoppel. However, he thought that the issue estoppel arising from the refusal of Pain J to allow a late amendment in the proceedings challenging the 2011 Renewal Decision did not constitute an abuse of process because the point was not finally determined by the Court; rather it was the subject of an application for leave to amend which was refused because it was made too late. The issue estoppel arising from the proceedings rejecting the challenge to the 2009 Renewal Decision seemed to satisfy the criteria for an abuse of process, if the same point was raised in subsequent proceedings. But his Honour thought it might be inappropriate to characterise the ground stated in the Paragraphs of the Summons as an abuse of process because the decision of Pain J at that stage was the subject of an appeal which had not yet been determined (although it has now been finalised).
The primary Judge said (at [47]) that the issue was one of construction of r 59.9. He considered (at [48]) that the Court's power to make an order under r 59.9(4) is not limited in the manner suggested by the Minister and Newcrest: "That provision should be given a purposive, beneficial construction which is consistent with the text and context. The purpose and effect of r 59.9(4) is to empower the Court to enable an applicant in judicial review proceedings to ascertain whether the terms of the decision and the reasons for the decision disclose unlawfulness in the decision-making process and to promote transparency and accountability in government decision-making. However, r 59.9 is not a freestanding provision. Rather, r 59.9 applies only to 'proceedings for judicial review in which relief is sought in relation to a decision of a public authority': r 59.9(1). In the present case the summons does seek such relief. Proceedings for judicial review must be commenced by summons: r 59.3(1). Rule 59.9 does not say that it applies only where the summons commencing the proceedings contains all the matters specified in r 59.4. If, in form, the summons does not contain all the matters required by r 59.4 - for example, if it does not specify a ground on which the relief is sought - it does not follow, in my view, that there are no 'proceedings for judicial review in which relief is sought in relation to the decision of a public authority' within the meaning of r 59.9(1). There are still such proceedings, as referred to in r 59.9(1), even if the content of the summons is deficient in terms of r 59.4. If that were not so, the consequence of non-compliance with r 59.4 would often be dire because there is often a statutory limitation period for commencing judicial review proceedings and, where there is not, r 59.10 specifies a limitation period of three months. Non-compliance with a form requirement of r 59.4 might not be focused on until the limitation period has expired."
His Honour said (at [49]) that whether the Court should exercise the discretion conferred by r 59.9(4) was a different question. He considered that the discretion should be exercised in favour of making an order: "[49] … When no ground, or only a manifestly hopeless ground, is stated in the summons or otherwise identified and there are no other significant circumstances, it is unlikely that the Court would exercise its discretion at all. However, where disclosure of a copy of the decision and the reasons is the only way, or an important way, in which it can be ascertained the decision-maker has obeyed the legislature's express command that a precondition to the exercise of the power must be satisfied, that may be a more promising case for the exercise of the discretion. It is of such importance as to warrant (depending on the circumstances) favourable consideration by the Court of an exercise of the discretion under r 59.9(4). … [50] Section 114(6) [of the Mining Act] prescribes a jurisdictional fact of the subjective variety … The Minister has to have the mental state of satisfaction that special circumstances exist before he can renew an exploration licence over a larger area than half the previous area. Section 114(6) applies in the present case because the number of units over which the licence was renewed equalled the number of units over which the licence was in force when the application for the renewal was made. Disclosure of the Minister's reasons is an important mechanism, and may be the only mechanism, for ascertaining whether the Minister had the prescribed state of satisfaction. Assuming, as I have held, that the Court has power to make the order sought, the respondents do not submit that the discretion to make the order should not be exercised. In the circumstances, I propose to exercise the discretion to make the order."
The primary Judge made the following orders relevant to the application for leave to appeal: "(1) Paragraphs 29 to 32 of the summons filed on 26 June 2014 are struck out. (2) The [Minister] is to provide to the other parties by 5pm on 1 October 2014 - (a) a copy of the decision to grant the renewal of EL 3856 on 17 January 2014; and (b) a statement of reasons for that decision, prepared in accordance with r 59.9(3) of the Uniform Civil Procedure Rules 2005. … (5) If the applicant seeks to amend the summons, it must file and serve a notice of motion returnable on 10 October 2014 seeking leave to amend and annexing a copy of the proposed amended summons, together with any supporting affidavits, on or before noon on 7 October 2014."

The Stay

On 1 October 2014, the primary Judge stayed until further order, Orders 2, 4 and 5 made on 17 September 2014: Gold and Copper Resources Pty Ltd v Newcrest Mining Ltd (No 2) [2014] NSWLEC 160.

Submissions

The Minister submitted that UCPR r 59.9(4) did not empower the primary Judge to make an order requiring the Minister to give reasons for the 2014 Renewal Decision. Mr Hale contended on behalf of the Minister that the power conferred by r 59.9(4) is available if and only if, at the time the Court proposes to make the order, the proceedings satisfy the description in r 59.9(1): that is, they are "proceedings for judicial review in which relief is sought in relation to a decision of a public authority". In circumstances where the Court has struck out or proposes to strike out the sole ground for relief identified in the Summons, so Mr Hale argued, it cannot be said that the proceedings seek "relief" in the sense required by r 59.9(1). That term should not be confined to the orders sought in the Summons but should be understood to extend to the grounds on which the Summons seeks relief. If there are no grounds stated in the Summons because they have been struck out, it does not seek relief for the purposes of r 59.9(1) and thus the power conferred by r 59.9(4) is not available.
Like the primary Judge, Mr Hale emphasised that r 59.9(4) is drafted so as not to confer a free-standing entitlement to a party to require an administrative decision-maker to provide reasons for a decision. Mr Hale said that if the primary Judge's decision stands, r 59.9(4) would be converted into a "free-standing right", such as that created by s 13 of the ADJR Act to obtain reasons for a decision independent of any identifiable ground for challenging that decision.
The Minister adopted a submission made by Newcrest that a "proceeding" for the purposes of r 59.9(1) does not include a proceeding that is an abuse of process. Newcrest pointed out that the primary Judge did not address their submission, presumably because he did not find that the proceedings constituted an abuse of process. Both submitted that Anshun estoppel and issue estoppel are species of abuse of process and that prosecuting a proceeding that is barred by estoppel is a form of abuse of process. Since the primary Judge held that the sole ground of review in the Summons was barred by estoppel, the proceedings themselves constituted an abuse of process.
Newcrest accepted that the ability to obtain reasons is an extremely valuable right for someone wishing to challenge an administrative decision. Newcrest also accepted that the task of someone seeking to challenge a decision by judicial review, where there is no statutory right to reasons, may be difficult. But it submitted that proceedings commenced in order to ascertain whether an applicant or plaintiff has a ground for judicial review cannot be proceedings to which r 59.9 applies. The application would instead be seeking relief in the nature of preliminary discovery, a procedure governed by UCPR Pt 5.
Both the Minister and Newcrest argued that, in any event, the primary Judge's exercise of discretion miscarried because his Honour failed to characterise the proceedings as an abuse of process. They contended that as a matter of principle, where proceedings are properly characterised as an abuse of process, no other circumstances can outweigh that defect and justify the making of an order under r 59.9(4). While it was open to Gold & Copper to include in its Summons non-compliance with s 114(6) of the Mining Act as a ground of review, it had not done so.
Finally, the Minister and Newcrest submitted that once the proceedings had been characterised as constituting an abuse of process, the L & E Court had no further discretion to refuse a stay or dismissal of the proceedings. Thus the primary Judge erred in not dismissing the proceedings under UCPR r 13.4(1).
Gold & Copper's written submissions in substance supported the reasoning of the primary Judge.

Mechanisms for Obtaining Reasons

As the primary Judge correctly observed, there is no general duty at common law on a decision-maker to give reasons for an administrative decision: Public Service Board v Osmond [1986] HCA 7; 159 CLR 656. The absence of reasons does not make an administrative decision unexaminable. It is still generally open to a person aggrieved by the decision to challenge it, for example, on the ground that it is affected by error of law or that the decision-maker has taken into account an extraneous consideration: Avon Downs Pty Ltd v Federal Commission of Taxation [1949] HCA 26; 78 CLR 353 at 360 (Dixon J). Nonetheless, the absence of reasons may make it very difficult for an aggrieved person to establish a ground for judicial review of an administrative decision: Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154; 75 NSWLR 169 at [98] (Spigelman CJ, McColl JA and Handley AJA agreeing).
To overcome the common law lacuna in administrative accountability, legislation often imposes an obligation on a decision-maker to provide reasons: see M Aronson and M Groves, Judicial Review of Administrative Action (5th ed 2013, Thomson Reuters)) at [8.439]-[8.440]. An example is s 13 of the Commonwealth ADJR Act, to which both the primary Judge and Mr Hale referred. It is not quite true to say that s 13 creates a "free-standing right" (to use Mr Hale's phrase) to require a decision-maker to provide reasons for an administrative decision made under Commonwealth law. The statutory right is limited to a person who is entitled to make an application for judicial review of the decision pursuant to s 5 of the ADJR Act. The person must therefore be "aggrieved" by the decision, as s 5 requires. Even so, such a person may require the decision-maker to provide a statement of reasons without first initiating a challenge to the decision or demonstrating that he or she has grounds for a challenge.
In New South Wales, s 49(1) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) provides that if an administrator makes an "administratively reviewable decision", an interested person may make a written request to the administrator for a statement of reasons. Subject to limited exceptions, the administrator must comply with the request within 28 days: ADR Act, ss 49(2), 49(3), 49(4), 50. However, these provisions do not apply to decisions under the Mining Act as the Act does not give the New South Wales Civil and Administrative Tribunal administrative review jurisdiction in relation to such decisions: see ADR Act ss 7(1), 9(1). Thus they are of no assistance to Gold & Copper.
Prior to the introduction of UCPR Part 59 in 2013, persons aggrieved by an administrative decision had certain mechanisms available to compel decision-makers to provide reasons, even if s 49(1) of the ADR Act did not apply. But these mechanisms required the person seeking reasons to institute proceedings challenging the decision and then making a request to the decision-maker to provide reasons.
One such mechanism was provided by Practice Note SC CL 3, which took its present form in 2005 (although the current Practice Note dates from 2007). Practice Note SC CL 3 has its origins in Practice Note 119 (2001): see (2001) 50 NSWLR 660. Practice Note SC CL 3 continues to apply to proceedings in the Administrative Law List in the Supreme Court and provides as follows: "Where proceedings have been taken to challenge the decision of a public body or public official, because of the difficulties which at times arise in ascertaining the decision making process and the reasons for the decision, the Court may, at a directions hearing direct the body or person whose decision has been challenged to furnish to the plaintiff within a specified time, a statement in writing setting out the reasons for the decision including findings on material questions of fact referring to the evidence or other material on which those findings were based, the body's or person's understanding of the applicable law and the reasoning processes leading to the decision (compare Administrative Decisions Tribunal Act 1997 (NSW), s49). Otherwise in appropriate cases, orders may be made for such matters to be ascertained by way of particulars, discovery or interrogatories. Subject to this, orders for discovery or interrogatories will only be made in exceptional cases, and such orders will then generally be confined to particular issues. Evidence in matters in the List is normally by affidavit."
In Austral Industries v Pittwater Council, the Council challenged a Ministerial decision on the ground that it was made for an improper or collateral purpose. In the absence of a statement of reasons from the Minister, the Council was unable to make out its case. Spigelman CJ pointed out (at [99]-[100]) that the Council could have utilised the procedure in the Practice Note to obtain a statement of the Minister's reasons.
A second mechanism was (and is) available in Class 4 proceedings in the L & E Court. A party to such proceedings can invoke r 4.3 of the Land and Environment Court Rules 2007 (NSW), which provides as follows: "In any proceedings in which a public authority's decision is challenged or called into question, the Court may make one or more of the following orders: (a) an order directing the public authority to make available to any other party any document that records matters relevant to the decision, (b) an order directing the public authority to furnish to any other party a written statement setting out the public authority's reasons for the decision, being a statement that includes: (i) the public authority's findings on any material questions of fact, and (ii) the evidence on which any such findings were based, and (iii) the public authority's understanding of the applicable law, and (iv) the reasoning process that led to the decision, (c) an order for particulars, discovery or interrogatories." (Class 4 proceedings are those in respect of which the L & E Court has jurisdiction under s 20 of the LEC Act).
As the primary Judge pointed out (at [40]-[41]), r 4.3 has been given a "beneficial" construction in a number of decisions in the L & E Court, including several by his Honour. In at least one case, a direction was given that a respondent Council provide a written statement of reasons for a decision, notwithstanding that in the same judgment an order was made striking out the applicant's points of claim (but leaving the applicant's summons on foot): Hooper v Port Stephens Council [2010] NSWLEC 41 (Sheahan J).

The Question of Power

In the present case, the primary Judge directed the Minister to provide a statement of reasons for the 2014 Renewal Decision pursuant to UCPR r 59.9(4). Neither the Minister nor Newcrest disputes that the proceedings instituted in the L & E Court are proceedings for or in the nature of judicial review in the Class 8 jurisdiction of the L & E Court and are thus within r 59.1(1)(b). Nor do they dispute that the Minister is a "public authority" for the purposes of r 59.9(1).
There is one difference between the submissions of the Minister and those of Newcrest. The Minister appears to accept that the proceedings, when commenced, were within r 59.9(1) since they were "proceedings for judicial review in which relief is sought in relation to a decision of a public authority". The Minister's contention is that the proceedings must answer that description at the time the Court is asked to make an order under r 59.9(4). If they do not, on Mr Hale's argument the Court lacks the power to make the order.
Newcrest's position seems to be that if proceedings, when commenced, are really to ascertain whether the applicant might have a ground available to review a decision, they are not proceedings "for judicial review in which relief is sought in relation to a decision" within r 59.9(1). Newcrest says that such proceedings are in substance proceedings to ascertain whether a ground for judicial review might be available. It argues that Gold & Copper's Summons should be characterised in this way because of its counsel's concessions before the primary Judge, particularly the concession that Gold & Copper's application for an order that the Minister provide reasons was a "fishing expedition". Since Mr Jackman chose not to elaborate on Newcrest's written submissions (by which I mean no criticism), its argument was not developed further.
UCPR r 59.4(c) requires a summons seeking relief by way of judicial review to state "with specificity" the grounds on which relief is sought. The obvious purpose of the sub-rule is to ensure that the initiating process identifies clearly the legal basis on which the party aggrieved by a decision says that he or she is entitled to the relief claimed. The requirement is intended to ensure that the aggrieved party articulates a case for relief in the initiating process which defines the nature and scope of the dispute and enables the Court to assess what issues are likely to arise in the proceedings. Plainly a summons which merely sets out the relief that is sought but fails to identify any grounds for the relief, does not comply with r 59.4(c).
It is a basic principle of construction that the meaning of a provision must be ascertained by reference to the text, considered in the context of the instrument as a whole: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ); Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [23]-[24] (French CJ and Hayne J); at [88]-[89] (Kiefel J). Rule 59.9 is a sub-rule within Part 59, which includes r 59.4. There is a close relationship between these two provisions.
If a summons states grounds for the relief sought, as r 59.4(c) requires, the Court considering an application for reasons under r 59.9(4) is able to assess whether a statement of reasons is likely to assist the applicant in pursuing his or her case. If no grounds for relief are stated, the Court is limited to considering whether a statement of reasons might assist the aggrieved person to formulate an as yet unarticulated case. The two exercises are quite different. The second can be undertaken (if it is to be undertaken at all) quite independently of any litigation between the person aggrieved and the decision-maker.
The language of r 59.9, when read in context suggests that the power to direct the decision-maker to provide reasons is only available in proceedings in which the applicant states the grounds on which relief is sought. Unless r 59.9 is construed in this way, an aggrieved person is able to seek an order for the decision-maker to provide a statement of reasons without formulating a case and without attempting to comply with the requirements of r 59.4 (see also s 69(1)(f) of the Supreme Court Act). It is true that the court may have a discretion to refuse to make an order. But if it is permissible for an aggrieved person to file a summons simply for the purpose of enlivening the power in r 59.4, it is difficult to see why the failure to specify any grounds would constitute, of itself, a discretionary ground for refusing to make an order.
For these reasons, I think that there is considerable force in the Minister's contention that r 59.9(4) does not confer power on the court to order a decision-maker to provide reasons unless, at the time the order is sought and made, the party seeking the order has stated grounds for the relief sought in the summons. It would seem to follow, assuming this to be correct, that where the only ground for relief stated in a summons has been struck out, the court lacks the power under r 59.9(4) to order a statement of reasons.
Despite the force of the Minister's contention I do not consider it appropriate to express a final view on the issue. The Court did not have the benefit of argument from a contradictor. Moreover, some questions, such as the significance of grounds being stated but not "with specificity", were not explored in argument. I am therefore prepared to consider the primary Judge's exercise of discretion on the assumption that his Honour had power to make an order pursuant to r 59.9(4) notwithstanding that he had already decided to strike out the sole ground for relief stated in the Summons.

The Primary Judge's Exercise of Discretion

Gold & Copper conceded before the primary Judge that it could not rely on the Paragraphs because of issue estoppel and Anshun estoppel. It is by no means clear that the concession, at least in the terms expressed to the primary Judge, was correct. In particular, it is doubtful whether the decision of Pain J on 17 May 2013 quashing the 2011 Renewal Decision in relation to EL 3856 gave rise to an issue estoppel or Anshun estoppel that barred Gold & Copper from contending in the present proceedings that Newcrest's application for renewal of EL 3856 was invalid.
Pain J refused leave to Gold & Copper to amend its pleadings to rely on that contention in its challenge to the 2011 Renewal Decision. In any event, her Honour ultimately found in Gold & Copper's favour and quashed the 2011 Renewal Decision on a separate ground advanced by Gold & Copper. It is difficult to see how an issue estoppel arose in relation to an argument on which her Honour gave no ruling and was not the ground of the actual decision: see Blair v Curran [1939] HCA 23; 62 CLR 464 at 532 (Dixon J). It is also difficult to see how an Anshun estoppel could arise from her Honour's decision.
There is no similar difficulty with Gold & Copper's concession before the primary Judge that Pain J's decision on 1 April 2014 gave rise to an issue estoppel. Pain J rejected Gold & Copper's challenge to the validity of Newcrest Operation's application in 2009 to renew EPL 1024. The decision was based squarely on her Honour's holding that Newcrest Operation's application to renew EPL 1024 was valid notwithstanding that part of the application form had been removed and replaced. Both the Minister and Gold & Copper were parties to the proceedings and bound by any issue estoppel. However, Newcrest (as distinct from Newcrest Operations) was not a party to the proceedings and not necessarily bound by the issue estoppel.
Whatever the merits of Gold & Copper's concessions before the primary Judge, his Honour concluded that the only ground for judicial review stated in Gold & Copper's Summons was barred by issue estoppel and Anshun estoppel. That conclusion has not been challenged by Gold & Copper in the Minister's application for leave to appeal.
It is a necessary consequence of the primary Judge's unchallenged conclusion that Gold & Copper's pleaded case involved an abuse of the Court's process. This follows from the authorities holding that an attempt to relitigate controversies that have already been decided constitutes an abuse of process. As was said by the Full Federal Court in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; 146 FCR 10 at [36]: "The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa (a person ought not to be vexed twice for one and the same cause) and interest reipublicae ut sit finis litium (it is in the interests of the State that there be an end to litigation). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court." See also Rogers v The Queen [1994] HCA 42; 181 CLR 251 at 273-274 (Deane and Gaudron JJ); Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [59], [64], [66] (French J), cited with approval in Dale v Western Australia [2011] FCAFC 46; 191 FCR 521 at [112] per curiam.
The primary Judge's exercise of the discretion conferred by UCPR r 59.9(4) was informed by his Honour's view (at [46]) that although the sole ground for relief stated in the Summons was barred by issue estoppel, Gold & Copper's pleading should not be regarded as an abuse of the process of the Court. His Honour therefore determined Gold & Copper's application for an order requiring the Minister provide a statement of reasons on the assumption that the proceedings, as constituted, did not amount to an abuse of process. In taking this approach his Honour made an error of principle. That error vitiated the exercise of his Honour's discretion: House v The King [1936] HCA 40; 55 CLR 499 at 505 (Dixon J); Cunneen v Independent Commission Against Corruption [2014] NSWCA 421 at [160] (Ward JA, Bathurst CJ agreeing).
Since the primary Judge's discretion miscarried, it is necessary to reconsider the exercise of discretion conferred by r 59.9(4). At the time the primary Judge considered Gold & Copper's application under r 59.9(4) he had concluded that the sole ground for relief stated should be struck out because it was barred by issue estoppel. Not only were the proceedings in that form properly characterised as an abuse of process, but Gold & Copper did not suggest that it could replead its case on the material available to it. Gold & Copper's counsel accepted that unless its "fishing expedition" yielded results, the proceedings would have to be dismissed. The only basis put forward for keeping the proceedings alive was the possibility that the Minister's statement of reasons might enable Gold & Copper to articulate a case in the future but was not then available.
In my opinion, it is not a proper exercise of the discretion conferred by r 59.9(4) (assuming the power exists) to order the decision-maker to provide a statement of reasons where:

the only ground for relief relied on by the applicant constitutes an abuse of the court's process; and
no application is made or foreshadowed to amend the summons or other pleadings to raise an arguable claim for relief.

The very point of the abuse of process doctrine is to prevent the court being used as an instrument of oppression or unfairness: Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ). An order under r 59.9(4) requiring a decision-maker to provide reasons, if made in proceedings which constitute an abuse of process would not fulfil the court's duty to prevent abuse of its procedures. In the present case, the order made by the primary Judge effectively rewarded Gold & Copper for its abuse of process.
It follows that Gold & Copper's motion for an order pursuant to UCPR r 59.9(4) should have been dismissed.

Dismissal of the Proceedings?

The primary Judge referred in the Primary Judgment (at [49]-[50]) to the possibility that Gold & Copper may have had a case that the Minister (or his delegate) did not comply with s 114(6) of the Mining Act before renewing EL 3856. Gold & Copper did not seek leave to amend its Summons to plead that the 2014 Renewal Decision was invalid because the Minister had not been satisfied that "special circumstances" justified renewal of EL 3856, as s 114(6) of the Mining Act requires. Presumably Gold & Copper did not do so because it lacked affirmative evidence that the Minister had not been satisfied that special circumstances existed. The view may have been taken that it was not appropriate to allege that the statutory precondition for renewal had not been met when there was no affirmative evidence to that effect.
Whether Gold & Copper could properly have alleged that the Minister failed to comply with s 114(6) of the Mining Act is not an issue that was debated before this Court. Mr Hale appeared to accept, however, that it may have been open to Gold & Copper to seek leave to amend its Summons and, if leave was granted, then to apply for an order under r 59.9(4) requiring the Minister to provide reasons. The outcome of any such leave application might have depended upon whether Gold & Copper had a sufficient basis, in the absence of a statement of reasons by the Minister, to allege a failure to comply with s 114(6).
Both the Minister and Newcrest submitted, at least initially, that the primary Judge, having concluded that the ground for relief stated in the Summons was barred by issue estoppel and therefore an abuse of the Court's process, had no alternative but to dismiss the Summons. Insofar as the submission rests on the proposition that a court is obliged to dismiss proceedings which involve an abuse of process, I do not accept the proposition. Depending on the circumstances, the applicant may be able to reformulate the proceedings so that they no longer constitute an abuse of process and may be permitted to continue with them in the amended form.
UCPR r 13.4(1), upon which the Minister relied before the primary Judge, makes it clear that the fact that proceedings involve an abuse of process does not necessarily mean that the proceedings in their entirety must be dismissed. The rule empowers the Court, if proceedings generally or in relation to any claim for relief are an abuse of process, to dismiss the proceedings generally or in relation to that claim. The appropriate order under r 13.4(1) will therefore depend on the nature of the abuse of process and what is needed to prevent the court's process being abused.
The principle is recognised in the authorities. In Rogers v The Queen [1994] HCA 42; 181 CLR 251, for example, a majority of the High Court held that the tender of certain records of interview in criminal proceedings would be an abuse of process because the records had been ruled inadmissible in previous criminal proceedings against the accused. The consequence was not that the criminal prosecution was stayed, but that a declaration was made that the course proposed by the prosecution was an abuse of process. As a result, the prosecution was permitted to proceed, but without the records of interview. While the doctrine of abuse of process does not apply in identical fashion to criminal and civil proceedings, the principle illustrated in Rogers v The Queen equally applies to civil proceedings.
If Gold & Copper had applied to the primary Judge to amend its pleadings to allege a failure by the Minister to comply with s 114(6), without seeking at that stage an order under r 59.9(4), the primary Judge would have been justified in entertaining the application. Mr Hale effectively conceded as much in his argument in this Court. (That does not mean that his Honour would have been bound to accede to the amendment application; only that the application could have been entertained.)
Gold & Copper not only made no application, but its counsel conceded that in the absence of a statement of the Minister's reasons, it could not amend its Summons so as to plead an arguable case. Moreover, since Gold & Copper has not appeared in this Court, it has foregone the opportunity to seek to change its position seeking leave to amend the Summons. It has also foregone the opportunity to explain why the proceedings serve any useful purpose, given that the period of renewal resulting from the 2014 Renewal Decision has now expired.
In view of the way the matter was conducted before the primary Judge, in my opinion his Honour erred in declining to make an order dismissing the proceedings. The proceedings constituted an abuse of process and Gold & Copper neither made nor foreshadowed an unconditional application to amend the Summons. It foreshadowed an application to amend, but only if the Minister's statement of reasons provided evidence of a failure to comply with the legislation. Since the order requiring reasons was made erroneously, Gold & Copper effectively conceded that it did not have an arguable case for relief.

Orders

The contentions raised by the Minister involve issues of principle that justify the grant of leave to appeal. The Minister should be granted leave to appeal and the appeal should be allowed. The orders made by the primary Judge must be set aside and the Summons dismissed. Gold & Copper should pay the Minister's costs of the application for leave to appeal and of the appeal. Since Newcrest's interests appear to have been identical to those of the Minister, it should bear its own costs of the application for leave to appeal and of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 May 2015

(Mining Act): Land and Environment Court Act 1979(NSW)

Administrative Decisions Tribunal Act 1997(NSW)

499 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Public Service Board v Osmond [1986] HCA 7; 159 CLR 656 Rogers v The Queen [1994] HCA 42; 181 CLR 251 Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 Walton v Gardiner [1993] HCA 77; 177 CLR 378 Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; 146 FCR 10 Texts Cited: M Aronson and M Groves, Judicial Review of Administrative Action (5th ed 2013, Thomson Reuters) Category: Principal judgment Parties: Minister for Resources and Energy (Applicant) Gold and Copper Resources Pty Limited (First Respondent) Newcrest Mining Limited (Second Respondent) Representation: Counsel: TS Hale SC / L Waterson (Applicant) No appearance (First Respondent) IM Jackman SC / SA Lawrance (Second Respondent)

Solicitors: Crown Solicitor's Office (Applicant) No appearance (First Respondent) Allens (Second Respondent) File Number(s): 2014/301804 Decision under appeal Court or tribunal: Land and Environment Court of New South Wales Citation: Gold and Copper Resources Pty Ltd v Newcrest Mining Ltd [2014] NSWLEC 148 Date of Decision: 17 September 2014 Before: Biscoe J File Number(s): 80455/14

HEADNOTE [This headnote is not to be read as part of the judgment] The first respondent (Gold and Copper) commenced proceedings in the Land and Environment Court challenging the validity of a decision by the applicant (Minister) on 17 January 2014 to renew a mining exploration licence (EL 3856) held by the second respondent (Newcrest). The primary Judge struck out the paragraphs in the summons which contained the only ground for challenging the validity of the licence renewal. The paragraphs were struck out due to an issue estoppel or Anshun estoppel (which the first respondent conceded) arising out of two previous proceedings to challenge the validity of a previous renewal of EL 3856 in 2011 and EPL 1024 in 2009. Despite striking out of the only ground of complaint, the primary Judge ordered the Minister to provide Gold and Copper with a copy of the 2014 renewal decision and a statement of reasons for making the decision pursuant to Uniform Civil Procedure Rules (UCPR), r 59.9(4). The Minister appealed against the order of the primary Judge. The principal issues on appeal were: 1. The proper construction of UCPR rr 59.9(1) and 59.9(4). 2. Whether the primary Judge erred in exercising the discretion conferred by UCPR r 59.9(4). 3. Whether the primary Judge erred in declining to dismiss the proceedings pursuant to UCPR r 13.4(1). Held (per Ward JA, Bergin CJ in Eq and Sackville AJA), allowing the appeal: In relation to (1): Although it is not necessary to finally decide, the language of r 59.9, when read in context suggests that the power conferred by r 59.9(4) to direct the decision-maker to provide reasons is only available in proceedings in which the applicant states grounds on which relief is sought: (at [71]). Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 In relation to (2): It is not a proper exercise of the discretion conferred by r 59.9(4) to order the decision-maker to provide a statement of reasons where: (I) the only ground for relief relied on by the applicant constitutes an abuse of the court's process; and (II) no application is made or foreshadowed to amend the summons or other pleadings to raise an arguable claim for relief: (at [81]). An order under r 59.9(4) requiring a decision-maker to provide reasons, if made in proceedings which constitute an abuse of process would not fulfil the court's duty to prevent abuse of its procedures: (at [82]). Blair v Curran [1939] HCA 23; 62 CLR 464; Cunneen v Independent Commission Against Corruption [2014] NSWCA 421; Dale v Western Australia [2011] FCAFC 46; 191 FCR 521; House v The King [1936] HCA 40; 55 CLR 499; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589; Public Service Board v Osmond [1986] HCA 7; 159 CLR 656; Rogers v The Queen [1994] HCA 42; 181 CLR 251; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699; Walton v Gardiner [1993] HCA 77; 177 CLR 378; Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; 146 FCR 10 In relation to (3): The appropriate order under r 13.4(1) where proceedings constitute an abuse of process, depends on the nature of the abuse of process and the measures needed to prevent abuse of the court's process: (at [87]). An applicant may be able to reformulate the proceedings so that they no longer constitute an abuse of process and may be permitted to continue with them in the amended form: (at [86]). However, the primary Judge erred in declining to make an order dismissing the proceedings, since the proceedings constituted an abuse of process and Gold & Copper neither made nor foreshadowed an unconditional application to amend the Summons: (at [91]). Rogers v The Queen [1994] HCA 42; 181 CLR 251

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (21)

Cited By (6)