MINISTER FOR ENERGY, RESOURCES, INDUSTRY & ENTERPRISE

MURRIN MURRIN HOLDINGS PTY LTD AND GLENMURRIN PTY LTD

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : RE MINISTER FOR ENERGY, RESOURCES, INDUSTRY & ENTERPRISE; EX PARTE ST BARBARA LTD [2007] WASC 280

Mining law - Interpretation of Mining Act 1978 (WA) - Whether distinction exists between 'refusal' and 'dismissal' of an application for mining tenement - Application for miscellaneous licence - Anshun estoppel - Application dismissed as abuse of process - Whether 'refused'

Mining law - Prerogative writs - Prohibition - Ministerial power - Jurisdiction of Minister - Whether appeal lies to Minister against warden's 'dismissal' of application for miscellaneous licence as abuse of process - Obligations of Minister on hearing appeal

Prerogative writs - Mandamus - Issue of mandamus would be premature

Interpretation Act 1984 (WA), s 50(1)

Medical Practitioners Act 1983 (SA)

Mining Act 1978 (WA), s 10, s 11, s 13, s 18, s 19, s 40, s 41, s 42, s 44, s 56, s 57, s 59, s 70B, s 70D, s 71, s 75, s 86, s 91, s 92, s 94, s 111A, s 132

Second Respondents : Mr C L Zelestis QC & Mr M T McKenna

First Respondent : State Solicitor for Western Australia

1 STEYTLER P: This appeal raises an issue concerning the existence of a right of appeal to the Minister for Energy, Resources, Industry & Enterprise (WA) (Minister) against the dismissal, by a mining warden, of an application for the grant of a miscellaneous licence under s 91 of the Mining Act 1978 (WA) (Act). The issue is whether the appeal lies in circumstances in which the sole ground for the dismissal, and the only contention heard and determined by the warden, was that the application amounted to an abuse of process. There are two subsidiary issues. These arise only if an appeal to the Minister is found to lie in the circumstances posited. The first is whether the appeal lies even if the dismissal relates only to part of the application. The second concerns the obligations of the Minister on hearing an appeal in the circumstances posited.

The circumstances giving rise to the appeal

2 In October 2004 the second respondents applied for miscellaneous licences (licences) under s 91 of the Act. The applications were respectively numbered L37/129 and L37/130. A company, Sons of Gwalia Ltd, lodged objections to the grant of the licences pursuant to s 42 (read with s 92) of the Act. The appellant subsequently replaced Sons of Gwalia Ltd as the objector. In June 2006, the appellant applied for the stay or dismissal of both applications. It did so, in the case of application L37/130, upon the ground that the second respondents were estopped from bringing that application with the consequence that it amounted to an abuse of process. This was said to be so because the application covered the same land as had been the subject of a previously refused (but different) application made by an entity that was related to the second respondents. The objection to application L37/129 was made upon a similar ground, save that it related only to part of the land the subject of that application. This was because only that part of the land had been the subject of an earlier application by an entity related to the second respondents.

3 Section 42(3), read with s 92, of the Act provides that, where a notice of objection is lodged in accordance with the provisions of that section, 'the warden shall hear and determine the application for the [miscellaneous] licence in open court on a day appointed ... and may give any person who has lodged such a notice of objection an opportunity to be heard'. The warden heard the two applications on 14 July 2006 and 8 November 2006. There was no argument or evidence concerning the substantive merits of either application. The only issue aired was whether there was an estoppel of the kind discussed in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (Anshun estoppel), and whether the applications consequently amounted to an abuse of process.

4 The warden delivered his decision in both applications on 13 April 2007. He dismissed the whole of application L37/130. He found that the second respondents were estopped from bringing it and that it consequently amounted to an abuse of process. He dismissed application L37/129 on similar grounds, to the extent that it covered the same ground as had been the subject of a previous application.

5 Section 94(3) of the Act provides that, where a warden refuses an application for a miscellaneous licence, the applicant may, within the time and in the manner prescribed, appeal to the Minister against the refusal. Section 94(4) provides that the Minister may dismiss the appeal or uphold it and grant the application on such conditions as he considers reasonable.

6 On 27 April 2007 the second respondents appealed to the Minister against the dismissal of application L37/130. They also appealed against the partial dismissal of application L37/129. On 17 May 2007 the appellant wrote to the Minister submitting that s 94(3) of the Act had no application. This was said to be so because the warden had not refused the applications, but had 'dismissed' them without a hearing on the merits. The letter went on to say that if, notwithstanding this, the Minister decided to hear the appeals, the appellant would argue that the parties should be entitled to adduce evidence and cross-examine witnesses before the Minister.

7 The Minister decided that he had jurisdiction to hear and determine the appeals. By a letter dated 11 July 2007 from the Director of the Mineral and Title Services Division of the Department of Industry and Resources (Director), the appellant was told that the Minister intended to consider the appeals 'based on submissions received as well as subsequent responses to each primary submission'. The letter said that there was no requirement in the Act, and that it was neither practical nor necessary, for the Minister to entertain oral or other evidence following a decision of a warden. That position was maintained in a subsequent e-mail. In it, the Director said that the only evidence that the Minister would take into account was the affidavit evidence that had been put before the warden in the 'dismissal application'.

8 By an amended originating motion dated 19 September 2007, the appellant applied for the issue of a writ of prohibition preventing the Minister from hearing the appeals. It applied in the alternative, for a writ of mandamus compelling the Minister to receive and consider any evidence tendered by the appellant in opposition to the appeals and to limit consideration of the appeals 'to tenements referred to in the Warden's decision other than application L37/129'. This last limitation was sought upon the basis that the warden's decision in relation to application L37/129 could not be challenged until the warden had disposed finally of that application. On 19 September 2007, Newnes J granted an order nisi in the terms of the originating motion.

9 The return of the order nisi was heard by Templeman J. The orders sought were opposed by the second respondents. The Minister filed a notice of intention to abide by the court's decision. Templeman J discharged the order nisi, vacated a stay that had been ordered by Newnes J and dismissed the proceedings.

10 In his reasons, Templeman J dealt first with the application for the writ of prohibition: Re Minister for Energy, Resources, Industry & Enterprise; Ex parte St Barbara Ltd [2007] WASC 280 [3] - [28]. He summarised the contentions that had been made on behalf of each of the protagonists. Those made on behalf of the appellant were said to have been that:

(a) there is a significant difference between the refusal of an application and its dismissal;

(b) an application cannot be refused unless and until it has been considered on its merits;

(c) although s 42(3), read with s 92, of the Act gives to the warden a power to 'hear and determine' an application for a licence, the warden has an implied or incidental power to control proceedings before him;

(d) this implied or incidental power encompasses a power to dismiss an application as an abuse of process.

11 Templeman J mentioned that, if these contentions were correct, an administrative decision made by the warden to refuse a licence on its merits would be amenable to an appeal to the Minister, but one to dismiss the application on some legal ground would not be appealable [18]. However, he said, the applicant did not regard that distinction as unreasonable. This was because it submitted that questions of law should be for the courts, rather than the Minister. Templeman J said in this respect that, as the second respondents had pointed out, questions of law might well arise in decisions made on the merits [18].

12 The second respondents' submissions were said by Templeman J to have encompassed the following propositions:

(a) the appellant's construction was contrary to the scheme of the Act, which makes the grant or refusal of licences of this kind 'ultimately a matter for the Executive Government, rather than the courts';

(b) the decision whether or not to grant a prospecting licence (including a miscellaneous licence) does not involve the determination of rights in a dispute between private individuals, but involves the grant of an interest in property owned by the State, leading to the conclusion that the responsible Minister, acting on behalf of the State, is to be expected to be the 'ultimate repository of the power to grant or refuse licences';

(c) under the Act (as it then was) grants of prospecting licences (including miscellaneous licences) might be made, and objections determined, by persons who are not legally qualified: s 13(2), s 13(4), s 40 and s 42(3);

(d) the right of appeal to the Minister under s 94 emphasises the administrative nature of the powers granted; and this is further emphasised by s 111A of the Mining Act which provides that the Minister may, by notice, terminate an application for a mining tenement before the mining registrar has determined, or made a recommendation in respect of, the application or refused an application for a mining tenement in circumstances there set out; and

(e) if the appellant's submissions were correct, the Minister would be able to exercise his power under s 111A to remove from the warden an application which was, for example, subject to an abuse of process objection, whereas, if the warden had upheld the objection and dismissed the application, the Minister could no longer be involved in the matter.

13 Templeman J said, of the considerations raised on behalf of the second respondents [26]:

In my view, these considerations lead to the conclusion that the [second respondents'] construction of the Mining Act is to be preferred. I accept the [second respondents'] submission that the principle applicable in this case is that to which Brennan J referred in Walton v Gardiner (1993) 177 CLR 378, citing R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389, 398:

Where a jurisdiction is conferred on a court, 'and where such a jurisdiction is created for the public benefit or for the purpose of conferring rights or benefits upon persons the court upon an application properly made is under a duty to exercise its jurisdiction and is not at liberty to refuse to deal with the matter ... ' (414).

It follows, that in dismissing an application, the warden is not exercising an implied or incidental power of the kind for which the applicant contends. That is because such a power is not 'reasonably necessary' to enable the warden to perform the only function available to him under s 42 of the Mining Act: to 'hear and determine' the application for the licence. An application which is dismissed must therefore be taken to have been refused, with the result that the unsuccessful applicant is entitled to appeal to the Minister pursuant to s 94.

15 As to the first of the subsidiary issues mentioned earlier in these reasons, Templeman J rejected the submission that the warden's decision in relation to application L37/129 could not be challenged until he had finally disposed of that application. He said in that respect that, although the warden's decision was made only in relation to part of the ground covered by that application, it was nevertheless a refusal of a licence falling within the appeal provisions of s 94(3) of the Act [39].

16 As to the second of the subsidiary issues, he said [36] - [37]:

Leading counsel for the [second respondents] submitted that the Minister's stated intention to proceed on the basis of the material before the warden arose from a misunderstanding of the circumstances. That may well be so: although it is not necessary to dwell on the matter. That is because, as counsel for the [second respondents] acknowledged, it is obviously necessary, in order to afford the parties procedural fairness, that both the [second respondents] and the applicant be permitted to put before the Minister such evidence as they consider fit in relation to any issue in controversy between them.

In these circumstances, I accept the [second respondents'] submission that it would be inappropriate to issue a writ of mandamus against the Minister. It is to be expected that once the Minister becomes aware of the full circumstances, he will deal with the appeal in a proper manner.

17 There are three grounds of appeal. They address only application L37/129. That is because, on 12 December 2007, the second respondents withdrew their appeal to the Minister in respect of application L37/130.

18 The first ground is to the effect that Templeman J erred in declining to issue a writ of prohibition in circumstances in which there 'was no requisite refusal of the application within the meaning of section 94(3) as the application had been (partly) dismissed, and not refused ... '. It is unnecessary to repeat the lengthy particulars to that ground.

19 The second ground is that Templeman J erred in law in holding that the refusal of the application was amenable to appeal notwithstanding that the application had been dismissed only in part.

20 The third ground is that Templeman J erred in law by not issuing a writ of mandamus compelling the Minister to receive and consider relevant evidence tendered by the appellant, despite having found that it was necessary for both parties to put before the Minister such evidence as they considered fit and despite acknowledging that the Minister had indicated that he would not receive such evidence.

Ground 1 - the first issue - existence of a right of appeal

21 The question raised by ground 1 is one of construction of the Act. The more relevant provisions are s 42 and s 94. However, those provisions must be understood in their context in the Act.

22 The principal object of the Act is that of regulating access to and exploitation of the State's mining resources. The Act is to be administered by the Minister: s 10(1). He is assisted by a department of the Public Service of the State, encompassing a number of officers, including mining registrars: s 11. The appointment of persons holding office as magistrates as wardens of mines is provided for by s 13(1).

23 All land defined in s 8 as 'Crown land', but not the subject of a mining tenement, is open for mining: s 18. However, the Minister may, by an instrument in writing under his hand, exempt any land, not being private land or land that is the subject of a mining tenement or of an application therefor, from mining or from a specified mining purpose or from the Act or a specified provision of the Act: s 19(1)(a).

24 Part IV of the Act provides for the grant of mining tenements. These might take the form of prospecting licences (Div 1), exploration licences (Div 2), retention licences (Div 2A), mining leases (Div 3), general purpose leases (Div 4) and miscellaneous licences (Div 5). Different regimes are provided for depending upon the nature of the mining tenement applied for. For example, in the case of an application for an exploration licence, a retention licence, a mining lease or a general purpose lease, the application comes first before a mining registrar (where there is no objection) or a mining warden (where there is an objection). The registrar or warden, as the case may be, makes a recommendation to the Minister, who decides the application: s 57(1), s 59(2), s 59(4) - (6) (exploration licences); s 70B(1), s 70D(2), s 70D(4) - (6) (retention licences); s 71, s 75(2), s 75 (4) - (6) (mining leases); s 86(1), s 86(4) (general purpose leases). However, in the case of a prospecting licence or a miscellaneous licence the decision is made by a mining registrar or warden (s 40(1), s 42, s 91(1), s 92), subject to a right of appeal to the Minister against a refusal or a grant on unreasonable conditions (s 56, s 94(3) - (4)).

25 The Minister is also given power to terminate or summarily refuse certain applications. Section 111A provides, in this respect, amongst other things, that:

(a) by notice served on the mining registrar or the warden, as the case requires, terminate an application for a mining tenement before the mining registrar or the warden has determined, or made a recommendation in respect of, the application; or

(b) refuse an application for a mining tenement,

if in respect of the whole or any part of the land to which the application relates -

(c) the Minister is satisfied on reasonable grounds in the public interest that -

(i) the land should not be disturbed; or

(ii) the application should not be granted;

...

(4) The powers conferred by subsection (1) are in addition to any other powers of the Minister under this Act.

26 It is consequently plain from the scheme of the Act, as it appears from the provisions to which I have referred, that ultimate decision-making power rests largely with the Minister.

27 The powers given to a warden by s 40, s 42, s 91 and s 92 are administrative in character: Re Minister for Mines, Fuel and Energy; Ex parte Trythall (1991) 7 WAR 375, 389 - 390 (Murray J, dealing with s 42); Re Calder; Ex parte Gardner [1999] WASCA 28; (1999) 20 WAR 525 [12] - [14] (Ipp J, with whom Pidgeon J agreed, dealing with s 40 - s 42 and related sections). The appellant does not contend that, in hearing the matters before him, the warden was performing anything other than the administrative function entrusted to him under s 92, read with s 42 (although, as I have said, it contends that, when performing that function, he had an implied or incidental power to dismiss an application as an abuse of process). In particular, there is no contention that, when dealing with the appellant's objection based upon an 'Anshun estoppel' (I will assume, without deciding, that this was an appropriate basis for an objection under the Act), he was exercising the jurisdiction of a warden's court under s 132 of the Act so as to decide upon competing private rights as between the parties to the litigation (as to which see Re Calder [32], [33] (Ipp J, Pidgeon J concurring)).

28 A warden has no 'inherent jurisdiction' in the sense in which that expression is used in respect of superior courts. Nor, when performing his or her administrative functions under s 42 and s 92, does the warden have 'inherent powers' in the sense in which that expression is often used in respect of courts (as to which see Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [5] - [6]). A mining warden has only those powers that are expressly conferred upon the warden acting in that capacity, or those powers which are implied by the statute conferring the powers (being, of course, the Mining Act) or by s 50(1) of the Interpretation Act 1984 (WA). The last-mentioned section provides that:

(1) Where a written law confers upon a person power to do or enforce the doing of any act or thing, all such powers shall also be deemed to be conferred on the person as are reasonably necessary to enable him to do or to enforce the doing of the act or thing.

29 In the case of an application for the grant of a miscellaneous licence, an objection 'to the granting of an application' must be lodged at the office of the mining registrar: s 42(1), s 92. I have mentioned that, where a notice of objection is lodged, the warden 'shall hear and determine the application ... and may give any person who has lodged ... [the] notice ... an opportunity to be heard': s 42(3). Consequently, as counsel for the second respondents points out, the only permissible objection is one to the 'granting' of the application and it is the application for a grant of a miscellaneous licence that must be heard and determined. A person opposing the grant of an application may only do so by lodging an objection. There is no separate right to object to an application being considered at all, whether by way of interlocutory proceedings for a stay or dismissal or otherwise. Because the warden is exercising an administrative function (and not sitting as a warden's court), the powers provided by s 134 (given only to a 'warden's court') are not available in this context: Trythall (390); Re Calder [32], [33].

30 Moreover, s 42 assumes that the application will either be 'granted' (subject to such conditions as are prescribed or imposed) or 'refused'. If granted, it may be granted in respect of 'all or part of the land to which the application ... relates': s 44, s 92. The right of appeal to the Minister given in respect of decisions relating to miscellaneous licences is one in respect of the refusal of an application for a miscellaneous licence, or the grant of the application on unreasonable conditions. Under s 94(4) the Minister may dismiss the appeal or uphold it and grant the application on such conditions as he considers reasonable.

31 There is no basis for reading into the statutory scheme some implied power in the warden to control proceedings so as to prevent collateral attacks or other abuses by dismissing them in such a way as to preclude an appeal to the Minister. The plain effect of the relevant provisions is that the warden has the power to refuse any application upon the basis that it does not satisfy the express or implied requirements of the Act and his decision in that respect is subject to the right of appeal to the Minister. There is no reason to imply a separate power to 'dismiss' an application (as opposed to refusing it) in that or any other circumstance. Still less is there any basis for reading into the Act a power to 'dismiss' the application in such a way as to deny the right of appeal to the Minister.

32 As counsel for the second respondents point out, there is nothing in the Act which contemplates that the warden might reject an application by an unappealable decision. Rather, the Act plainly provides that the Minister is to have the final say in respect of any applications for miscellaneous licences that have been rejected by the warden. In addition, as Templeman J pointed out, s 111A gives the Minister an overriding power to intervene in respect of any application properly before the mining registrar or warden. As Ipp J remarked in Trythall (383), the scheme of the Act 'is plainly intended to allow the Minister a substantial degree of control over the granting of mining tenements'. He went on to say (also at 383) that this control is 'effected by conferring upon the Minister a very broad discretionary power over tenement grants, whether that discretion be exercised by way of grant following a recommendation of the Warden or on appeal from a decision of the Warden'. (See also Re Warden French; Ex parte Serpentine-Jarrahdale Ratepayers and Residents Association (1994) 11 WAR 315, 322 (Ipp J, Kennedy J concurring).)

33 Counsel for the appellant sought to place some reliance, in this respect, on what was said in James v Medical Board of South Australia [2006] SASC 267; (2006) 95 SASR 445. In that case, Anderson J (Bleby & Gray JJ concurring) held that disciplinary tribunals such as the Medical Board constituted under the Medical Practitioners Act 1983 (SA) are vested with implied powers to control all aspects of procedure which relate to procedural fairness. Anderson J went on to say, after referring to Walton v Gardiner (1993) 177 CLR 378, that, applying the reasoning in that case, the Board had, as part of its jurisdiction, an implied power to deal with an abuse of process argument [63].

34 Whatever may have been the position under that Act (which has a subject-matter and purpose entirely different from the Mining Act), there is, as I have said, nothing in the terms of the Mining Act, or the Interpretation Act, that should lead to the conclusion that the mining warden has a power to dismiss proceedings, and to deny any right of appeal, simply because there has, in his opinion, been an abuse of process. I should point out, in this respect, that there is a good deal of authority supporting the proposition that the Minister's powers are wider than those of the warden, in the sense that he might grant an application for a prospecting licence (or a miscellaneous licence) where a warden could not: Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234, 258 (Toohey J); Trythall (384 - 385). It would be an odd construction of the Act which had the result that, merely because the warden had declined to grant an application on the basis of some preliminary point (whatever its nature), no appeal lies to the Minister.

35 Nor can s 50(1) of the Interpretation Act operate in the way contended for on behalf of the appellant. The only power given to the warden is, as I have said, to grant or refuse an application and, similarly, the only right given to an objector is one to object to the grant of an application. There is no justification for implying a power in the warden to dismiss the application, whether for abuse or otherwise, in such a way as to render his or her decision unappealable.

36 Nor does it matter that the warden did not go on to hear and determine the application in all respects. Counsel for the appellant made two, alternative, submissions in this respect. The first was that the warden could only 'refuse', as opposed to 'dismiss', an application after a hearing on the merits. The second was that, if there is no distinction for the purposes of an appeal between a 'refusal' and a 'dismissal' of an application, then the application could only be refused or dismissed after a hearing on the merits.

37 As to the first submission, I have already said that I am not persuaded that there is anything in the Act that would support the supposed distinction between a 'refusal' and a 'dismissal'. A refusal of an application, however expressed, is still a refusal and appealable under s 94.

38 The second submission does not fall for decision in these proceedings. It was not raised before Templeman J and does not form part of any ground of appeal to this court. It is consequently unnecessary to deal with it. However, I doubt that it is sound.

39 In putting this second submission, counsel for the appellant placed emphasis on the fact that, even when sitting in an administrative capacity, the warden plays an important 'filtering' role, acting as the initial and primary reviewer of evidence in relation to the merits of a tenement application. He said that this is apparent from the scheme of the Act, which, as I have said, requires the warden or mining registrar (if there is no objection) to first assess the application (and the objection, in the case of a warden) for the purpose of making a recommendation to the Minister (in the case of an application for exploration and retention licences and mining and general purpose leases), or to decide the matter (in the case of applications for prospecting or miscellaneous licences).

40 All of this may be true, and there are good reasons why a warden should first publicly investigate contested applications (Re Warden French, 317 (Kennedy J), 324, 328 - 329 (Ipp J)). However, that does not justify what would amount to a re-writing of the relevant statutory provisions.

41 There is nothing in the Act as it stands (and as it stood at the relevant time) that would require the warden, in every case in which there is an objection, to hear and determine the whole of the merits of the application regardless of the nature, or merit, of the objection. If the objection raises a single point presenting an insuperable obstacle to the application (for example, that the application relates to land that is not open for mining, or is outside the State of Western Australia), there is nothing in the words of the Act, or in its scheme, even having regard to the usual aids to interpretation, that would lead to the conclusion that the warden could not simply decide that one point without further investigation or report. He or she would still have heard and determined the application and his or her refusal of it would be no less a refusal on that account. If, on an appeal, the Minister was to disagree with the warden's conclusion, that might lead to inconvenience, in the sense that the Minister might then have to conduct his own investigation, and hear evidence and submissions on any wider matters in contention. But that, of itself, provides no sufficient warrant for reading into the Act a requirement that the warden is, in every case, to investigate, or receive evidence and submissions with respect to, every aspect of the merits of each application.

42 Before leaving the point I should mention that counsel for the appellant sought to draw some support for his submission from R v Harlock; Ex parte Stanford & Atkinson Pty Ltd [1974] WAR 101. However, nothing said in that case supports the appellant's submission. The case involved plaints made by an applicant who sought forfeiture of a company's mineral claims arising out of breaches of labour conditions. At an early stage of the proceedings the warden, after hearing argument on the question, held that, because the plaints did not allege a default existing at the date of the plaints, they disclosed no cause of action. He dismissed them. The applicant applied for a writ of mandamus, asserting that the warden had failed to hear and determine the plaints pursuant to his duty to do so. The court (Hale, Lavan & Wickham JJ) found that the warden was in error in holding that the prosecutor could show no cause of action except by showing that a breach of the labour conditions had been committed on the date of the plaint. It consequently found that he had failed in his duty to hear and determine the prosecutor's case. However, the present case involves different considerations. The appellant does not suggest that the warden made any error. What it argues, in its alternative submission, is that the warden was obliged to consider the full merits of the application. The only relevance of Harlock to that issue rests in the following obiter comments by Hale J (104 - 105), which contradict the appellant's contention:

Now if the point raised by the warden was good in law I have no doubt that it was proper for him to raise it at once. Even in the absence of a demurrer a judge is not required to try an indictment which charges no offence known to the law ... If therefore his view of the law was correct any trial would of necessity be but an empty exercise, upon which he could be under no obligation to embark, and no mandamus could properly issue to compel him to do so.

Ground 2 - the first subsidiary issue - dismissal in part

43 I have mentioned that, under s 44, a prospecting licence (and hence, under s 92, a miscellaneous licence) may be granted in respect of all or part of the land to which the application relates. Implicitly, that must mean that an application may be refused in part. It consequently seems plain that the right of appeal given by s 94 of the Act encompasses a refusal of an application in part, or the grant of part of an application on unreasonable conditions.

44 A refusal of an application is nonetheless a refusal because it relates to part only of the land to which the application relates. Where a licence is granted in respect of only part of the land, the refusal to grant it in respect of the balance is final. It would be an unusual outcome if the Act were to be construed so as to have the effect that a right of appeal to the Minister could be defeated merely by granting a prospecting or miscellaneous licence in respect of one part of the land and refusing it in respect of all other parts of the land. The language of the relevant provisions does not support such a construction and I can see no reason why such an outcome might have been contemplated. Nor can I see any basis for a construction of the Act which has the consequence that a final refusal of part of an application is unappealable merely because the balance of the application has not yet been considered. The clear language of the Act is to the contrary.

Ground 3 - the second subsidiary issue - the Minister's obligations

45 The second respondents contend, in response to the appellant's contentions under ground 3, that Templeman J was right to rule that the application for a writ of mandamus was premature. They contend that the correspondence relied upon by the appellant does not represent the Minister's final position. They point to the fact that it took place before issues had crystallised, before the second respondents knew of the correspondence and therefore before they had had an opportunity to participate in it. They say that the Minister is obliged to accord procedural fairness and, once the issues become clearer and the Minister has the benefit of input from the respondents' legal advisers, there is no reason to think that he will not do so. They also point to the fact that the Director and the appellant might be at cross-purposes, the correspondence between them being in some respects ambiguous.

46 It seems to me to be appropriate to await the final position of the Minister before contemplating an order of the kind sought by the appellant. There is presently no reason to assume that, once the issues have been clarified and the Minister has had the benefit of input from the respondents' legal advisers, he will not perform his duty according to law. Importantly, since the hearing of the appeal a general election has been held in Western Australia and there has been a change of government. There is now a new Minister for Energy, Resources, Industry & Enterprise. Although there is still utility in determining the first two grounds of appeal notwithstanding the change, it seems to me that, even if that was not otherwise the case, in this circumstance the issue of a writ of mandamus upon the basis put forward under ground 3 would be premature. If there is ultimately a problem, the appellant can come back to the court.