Land and Environment Court New South Wales

• Medium Neutral Citation: Gold and Copper Resources Pty Limited v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30
• Hearing dates: 14 - 17 October, 19 December 2013
• Decision date: 01 April 2014
• Jurisdiction: Class 8
• Before: Pain J

Decision

1. The Applicant's Class 8 summons is dismissed.

2. Costs are reserved.

3. Exhibits to be returned.

• Catchwords: JUDICIAL REVIEW - challenge to renewal of exploration prospecting licence - application as required by Mining Act in existence at relevant time - applicant has not proved that Minister's delegate was not satisfied of existence of special circumstances - breach of s 112 based on breach of s 111 of EPA Act not legally available as matter of statutory construction - renewal of exploration prospecting licence not obtained by fraudulent misrepresentation
• Legislation Cited: Environmental Planning and Assessment Act 1979 s 110, s 110E, s 111, s 112, Pt 5; Evidence Act 1995 s 140; Land and Environment Court Rules 2007 r 4.3; Mining Act 1992 s 13, s 16, s 17, s 22, s 32D, s 33, s 41, s 51, s 63, s 87, s 90, s 95, s 113, s 114, s 117, s 130, s 131, s 132, s 135, s 137, s 159, s 293, s 374, s 382; Mining Regulation 2003 cl 56
• Cases Cited: Bailey v Forestry Commission of NSW (1989) 67 LGRA 200; Barrick Australia Ltd v Williams [2009] NSWCA 275; (2009) 74 NSWLR 733; Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Brown v Randwick City Council [2011] NSWLEC 172; (2011) 183 LGERA 382; Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2010] NSWLEC 1; (2010) 172 LGERA 25; Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2010] NSWCA 353; (2010) 178 LGERA 411; Commercial Banking Company of Sydney Limited v RH Brown & Co (1972) 126 CLR 337; F Hannan Pty Ltd v Electricity Commission of New South Wales [No. 3] (1985) 66 LGRA 306; Fullerton Cove Residents Action Group Inc v Dart Energy Ltd [2013] NSWLEC 38; (2013) 195 LGERA 329; Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155; Goldberg v Waverley Council [2007] NSWLEC 259; (2007) 156 LGERA 27; Gold and Copper Resources Pty Limited v Minister for Resources and Energy [2013] NSWLEC 66; Gold and Copper Resources Pty Limited v The Hon. Chris Hartcher MP, Minister for Resources and Energy, Special Minister of State, Minister for the Central Coast [2013] NSWLEC 166; Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353; (1986) 61 LGRA 401; Hurstville City Council v Minister for Planning and Infrastructure [2012] NSWLEC 134; (2012) 189 LGERA 269; Jarasius v Forestry Commission of NSW (No 1) (1990) 71 LGRA 79; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Khan v Minister for Immigration, Local Government and Ethnic Affairs (Federal Court, 11 December 1987, unreported); Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1; Martin v State of New South Wales (No 14) [2012] NSWCA 46; Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Minister for Immigration and Ethnic Affairs v Conygnham (1986) 68 ALR 441; Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz [1992] FCA 71; (1997) 34 FCR 348; NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (No 2) [2011] NSWLEC 98; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171; Oshlack v Rous Water (No 2) [2012] NSWLEC 111; (2012) 189 LGERA 243; Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia [2012] HCA 25; (2012) 289 ALR 1; SAS Trustee Corporation v Woollard [2014] NSWCA 75; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87; Sustainable Fishing and Tourism Inc v Minister for Fisheries [2000] NSWLEC 2; (2000) 106 LGERA 322; SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598; Vilro Pty Ltd (in voluntary liquidation) v Roads and Traffic Authority [2010] NSWLEC 234; (2010) 179 LGERA 47; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707
• Texts Cited: Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, (5th ed 2013, Thomson Reuters); Harry Woolf, Jeffrey Jowell, Andrew Le Sueur, Catherine Connelly and Ivan Hare, De Smith's Judicial Review, (7th ed 2013, Sweet & Maxwell)
• Category: Principal judgment
• Parties: Gold and Copper Resources Pty Limited (Applicant); The Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (First Respondent); Newcrest Operations Limited (Second Respondent)
• Representation: Mr T Alexis SC with Ms A Hemmings (Applicant); Mr T Hale SC with Mr T Waterson (First Respondent); Mr I Jackman SC with Mr S Laurance (Second Respondent); Hones La Hood (Applicant); Crown Solicitor's Office (First Respondent); Allens Linklaters (Second Respondent)
• File Number(s): 80869 of 2012

Judgment

1 The Applicant Gold and Copper Resources (GCR) challenges the renewal of an exploration prospecting licence (EPL) by Hon Chris Hartcher MP, the Minister for Resources and Energy, Special Minister (the Minister) through his delegate, Mr New, to the Second Respondent Newcrest Operations Limited (Newcrest) in 2009. The Court has jurisdiction to determine the matter under s 293(1)(q)(ii) of the Mining Act 1992 subject to the operation of the privative clause in s 137 of the Mining Act. The proceedings are in the nature of judicial review.

2 The amended summons seeks a declaration that the renewal is void and of no effect, inter alia. In the course of case preparation and argument during the hearing the grounds of appeal were narrowed to four so that all of the grounds articulated in the Further Amended Points of Claim (FAPOC) were not pressed. At issue is the receipt from Newcrest and processing and assessment in the Department of Primary Industries (the Department) of an application to renew EPL 1024 in 2009, ultimately granted by the Minister's delegate Mr New on 8 October 2009 for a five year period over the same area of land (six units) as previously. EPL 1024 was renewed for five years in 2004.

3 While this Court is not a court of strict pleading, detailed FAPOC have been filed which usefully articulate GCR's case. GCR bears the onus of proof of establishing its grounds of review on the balance of probabilities. One ground alleges fraudulent misrepresentation, to which the firmer Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 test must apply.

Mining Act as in force in 2009

4 Definitions in Dictionary:

approved means approved by the Minister.

authority means an exploration licence, an assessment lease or a mining lease.

exploration licence means an exploration licence granted under Part 3.

prospect means to carry out works on, or to remove samples from, land for the purpose of testing the mineral bearing qualities of the land, but does not include any activity declared not to be prospecting by a regulation under section 11A.

prospecting operations means operations carried out in the course of prospecting.

5 Part 3 of the Mining Act deals with exploration licences. Section 13 is concerned with applications for exploration licences. Under s 16 the Minister may require the applicant to furnish further information in connection with an application. Under s 17 the Minister may direct that any part of the land to which an application relates be excluded from the application with such a direction allowing the tenderer to amend the tender by written notice. Under s 22, after considering an application for an exploration licence, the Minister may grant or refuse the application. Section 32D deals with applications for low impact exploration licences.

6 Part 4 deals with assessment leases. Section 33 concerns applications for assessment leases. Under s 41 the Minister, after considering an application for an assessment lease, may grant or refuse the application.

7 Part 5 deals with mining leases with s 51 covering applications for mining leases. Under s 63 the Minister, after considering an application for a mining lease, may grant or refuse the application. Part 6 deals with the consolidation of mining leases with s 87, s 90 and s 95 concerning amendments to proposed leases.

8 Part 7 Renewal, transfer and cancellation of authorities applies to EPL 1024.

Division 1 Renewal of authorities

113 Applications for renewal

(1) The holder of an authority may, from time to time, apply for the renewal of the authority.

(2) An application for the renewal of an exploration licence or assessment lease must be lodged with the Director-General not earlier than 2 months and not later than 1 month before the licence or lease ceases to have effect.

(3) An application for the renewal of a mining lease must be lodged with the Director-General not earlier than 5 years and not later than 1 year (or, if the term of the mining lease is for 1 year or less, not earlier than 2 months and not later than 1 month) before the mining lease ceases to have effect.

(4) An application for the renewal of an authority must be accompanied by the appropriate lodgment fee.

(5) If an application for the renewal of an authority is in respect of part only of the land subject to the authority, the application must be accompanied by a description, prepared in the manner prescribed by the regulations, of the land over which renewal of the authority is sought.

(6) An application for the renewal of an exploration licence may be made in respect of one or more parts (but not more than such number of parts as may be prescribed by the regulations) of the exploration area.

(7) An application for the renewal of an assessment lease or a mining lease may be made in respect of the whole, or of any single part, of the assessment area or mining area.

(8) To avoid doubt, the holder of an exploration licence may apply for and be granted a renewal of the licence even if the holder is an applicant for or is granted an assessment lease or a mining lease with respect to some or all of the land in the exploration area.

114 Power of Minister in relation to applications

(1) After considering an application for the renewal of an authority, the Minister:

(a) may renew the authority, or

(b) may refuse the application.

(2) Without limiting the generality of subsection (1), an application may be refused if the applicant has been convicted of an offence against this Act or the regulations or any other offence relating to mining or minerals.

(3) The period for which an authority is renewed may not on any one occasion exceed:

(a) 5 years in the case of an exploration licence or assessment lease, or

(b) 21 years (or such longer period as the Minister may, with the concurrence of the Premier, determine) in the case of a mining lease.

(4) On renewing an authority, the Minister may amend any of the conditions of the authority and may include further conditions in the authority.

(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 number of units over which an exploration licence may be renewed is not to exceed half the number of units over which the licence was in force when the application for the renewal was made unless the Minister is satisfied that special circumstances exist that justify the renewal of the licence over a larger number of units.

(7) The Minister may defer dealing with an application for the renewal of a mining lease over any land if the mining lease is the subject of action being taken under Part 6 in connection with the granting of a consolidated mining lease over that land.

117 Authority to have effect until application dealt with

(1) If an application for the renewal of an authority is not finally dealt with before the date on which the authority would otherwise cease to have effect, the authority continues to have effect, in relation only to the land to which the application relates, until the application is finally disposed of.

(2) While an authority has effect under this section, the Minister may amend any of the conditions of the authority (other than a condition relating to royalty).

(3) An amendment takes effect on the date on which written notice of the amendment is served on the holder of the authority or on such later date as may be specified in the notice.

130 Withdrawal of application

(1) An application or objection in relation to the grant, renewal, transfer or cancellation of an authority may be withdrawn by means of a notice of withdrawal signed by the applicant or objector and lodged with the Director-General and ceases to have effect when the notice is lodged.

(2) The withdrawal of an application or objection under this section is irrevocable.

131 Pending applications

For the purposes of this Act, an application for an authority is pending from the time it is lodged until the time it is finally disposed of.

132 Disputes as to priority of applications

Any dispute as to the priority of competing applications for authorities over the same land is to be determined by the Minister.

135 Waiver of minor procedural matters

(1) The Minister may grant or renew an authority even though the applicant has failed to comply with a requirement of this Act or the regulations:

(a) as to the time within which anything is required to be done, or

(b) as to the details to be contained in any notice served, lodged or caused to be published by the applicant, or

(c) as to the particulars to accompany any application, or

(d) as to the furnishing of declarations and other information by the applicant.

(2) This section does not authorise the Minister to grant or renew an authority in the case of an applicant who has failed to comply with such a requirement unless the Minister is satisfied that the failure is unlikely:

(a) to adversely affect any person's rights under this Act or the regulations, or

(b) to result in any person being deprived of information necessary for the effective exercise of those rights.

382 Applications and tenders generally

(1) An application or tender under this Act must be in or to the effect of the approved form.

(1A) If an approved form requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to it or furnished with it, that information.

(2) An application or tender that is required to be lodged with a person must be so lodged in such manner, and during such times, as may be prescribed by the regulations but may, if the regulations so provide, be lodged with some other person.

Mining Regulation 2003 as in force in 2009

9 The definition section of the Mining Regulation 2003 (now repealed) (Mining Regulation) provided:

approved form in relation to an application, means the form approved for the application under section 382 of the Act.

10 Clause 56(2) provided:

56 Applications generally

(1) An application under the Act may be lodged either in person, by facsimile or by post. An application for an exploration licence may also be lodged electronically as provided by subclause (9).

(2) An application that is required to be lodged with the Director-General may be lodged instead with any other person that the Director-General may from time to time nominate as a person who may receive such an application.

(3) An application that is required to be lodged with a mining registrar may be lodged instead with any other person that the mining registrar may from time to time nominate as a person who may receive such an application.

(4) An application that is lodged in person with the Director-General or any other person nominated under this clause may be lodged on any day (other than a Saturday, Sunday or public holiday) between the hours of 9.30 am and 4.00 pm.

(5) An application that is lodged in person with a mining registrar or any other person nominated under this clause may be lodged on any day (other than a Saturday, Sunday, public holiday or other day on which the mining registrar's office is closed) between the hours of 9.30 am and 4.00 pm.

(6) An application that is lodged in person is to be endorsed, by the person with whom it is lodged, with the date and time of its lodgment.

(7) If an application is lodged by post, the application is presumed to have been lodged at 9.30 am on the day on which it is received.

(8) If an application is lodged by facsimile and the receiving facsimile machine records its receipt at a particular date and time, the application is presumed to have been lodged at that time on that date.

...

(12) If an application is required to be accompanied by a fee, the application is presumed to have been lodged:

(a) in the case of an application that is lodged in person, at the time and date of payment of the fee or at the time and date of lodgment of the application, whichever is later, or

(b) in the case of an application that is lodged by mail, at the time and date of payment of the fee or at 9.30 am on the day on which the application is received, whichever is later, or

(c) in the case of an application that is lodged by facsimile, at the time and date of payment of the fee or at the time and date that the application's receipt is recorded, whichever is later, or

...

11 It is agreed that the Form 9 application for renewal used by Newcrest in 2009 was an approved form as defined in the Mining Regulation.

Evidence

12 The Department of Trade and Investment (formerly the Department of Primary Industries) (the Department) (as shown in exhibit 2) includes the Mineral Resources branch which consists of four branches including Geological Survey and the Minerals Operations Branch. The Minerals Titles Branch (Titles Branch) is a subset of the Minerals Operations Branch. The structure of the Department informs the context of the documents tendered by the parties. The parties did not dispute that the structure of the Department as depicted in exhibit 2 broadly reflects what existed in 2009. The Titles Branch has two team leaders, one of whom is Mr New, Team Leader Mineral Titles Western. Mr McDonald, Western Region Titles is also part of the Titles Branch. Within Geological Survey is Mineral Exploration Assessment. Mr Capnerhurst, Manager Minerals and Land Use, and Mr Wood, principal geologist in exploration assessment, are part of Mineral Exploration Assessment.

13 The documents tendered by the Minister consisted of a copy of the Titles Branch file T94/1892 (exhibit 1). The Minister also tendered an organisational chart of the Resources and Energy Mineral Resources Branch, Department of Trade and Investment 2013 (exhibit 2). GCR's bundle of documents (exhibit A) contained documents discovered by Newcrest (section A), documents discovered by the Minister from files other than the Titles Branch file (section B), part of the Titles Branch file otherwise in exhibit 1 (section C), policy and procedure documents of the Department (Five year terms for Exploration Licences dated 18 May 1993, Policy on Renewal of Exploration Licences for Minerals effective 1 November 2004 printed 14 August 2013, Procedure Manual - Renewals of Exploration Licences and Associated Matters revision March 2006, Nomination of Persons to Receive Applications dated 10 July 2006 and Exploration Licence Renewals primefact 28 July 2005) (section D). GCR also tendered an organisational chart of the Department of Primary Industries as at 2008 (exhibit B), a Title Dealing Enquiry concerning EPL 1024 dated 8 October 2013 (exhibit C) and an instrument of delegation dated 8 December 2004 (exhibit D). GCR also tendered documents concerning the renewal of EL 3856 in 2004 (exhibit E).

14 Newcrest tendered the instrument of renewal with the conditions (exhibit 1A), the gazettal notice of the renewal (exhibit 2A), a document showing the exploration licences considered by the Exploration Titles Committee (ETC) on 6 October 2004 (exhibit 3A), mineral exploration assessment reports (exhibit 4A), a confidential annual report (exhibit 5A) and three GCR applications over land of EPL 1024 (exhibit 6A).

15 Mr Lewis swore an affidavit dated 29 September 2013 read by GCR. Between 2004 and 2008 Mr Lewis was the Assistant Director, Minerals & Land Use. A former mines department officer who spent some 22 years in the Department until 2008 he purported to give evidence about the practice and procedure in the Department in relation to the consideration of applications by the ETC and the subsequent approval by the delegate on behalf of the Minister. He had not been such a delegate. He chaired the ETC on several occasions. He stated that from his experience he is aware as a matter of practice and procedure that absent a recommendation from the ETC or directly from the responsible Minister a licence or renewal would not be approved or renewed. The delegate made the decision but that decision was the implementation of the recommendation made by the ETC. He is not aware of any instance where the Minister's delegate made a different decision to the recommendation made by the ETC. Following an ETC meeting a minute paper of the decision of the ETC relating to individual titles was prepared. The signed ETC minute paper was then sent to the Minister's delegate who in due course would sign the renewal instrument assuming that the ETC had approved and recommended that the renewal was to occur.

16 Mr Lewis was cross-examined. He was shown the special circumstances renewal document for five years and confirmed that it contains information relevant to someone with geological expertise which would require the views of Mineral Exploration Assessment (TS 88). Mr Lewis could not recall the number of ETC meetings he attended in 2004, 2005, 2006 and 2007. During the course of ETC meetings the ETC made recommendations for the chairperson to consider. The secretary would circulate the minutes to those who attended the ETC meeting for them to check their veracity. Once Mr Lewis had certified that the minutes were correct his involvement with that particular committee meeting ended (TS 90). Since leaving the Department Mr Lewis has been providing consultancy services to GCR which occupies approximately 50 per cent of his work. This relationship has not influenced his evidence (TS 91, 94). Mr Lewis stated that he and ETC members could have had access to the Titles Administration System (TAS) if they asked for it (TS 91). GCR would have had access to the TAS since at least 2009 through their consultant Mr Hetherington's company (TS 93).

17 Mr Harris, an officer of the Department, affirmed an affidavit dated 4 October 2013. He outlined the Department's electronic TAS. The Department has established the TAS to fulfil the requirements under s 159 of the Mining Act and the associated regulations that require a record to be kept of every application for an authority and every authority that is granted, renewed, transferred or cancelled under the Mining Act. The Department has accessed TAS accounts for many participants in the NSW mining industry. By accessing the TAS, the holder of a TAS account can access detailed information about the grant and renewal of an authority including the dealing status of the application. The information on the TAS is regularly updated by the Department.

18 Mr Harris was cross-examined. He stated that almost certainly members of the ETC would have had access to the TAS in 2009 (TS 118). If anyone wanted access to the TAS, they could get it (TS 119). For dealings in the TAS acronyms are used which are APP for application, REN for renewal and MSC for miscellaneous which is a catch all dealing (TS 120). It was outside Mr Harris' expertise to know whether a miscellaneous dealing would be entered if the sought expiry date is subsequently changed from that initially sought (TS 120). If a clerical error is made a new dealing is not always entered (TS 126). If draftsmen make mistakes concerning the number of areas covered this is checked against the renewal application (TS 127).

Background facts

19 At a broad level the background facts relevant were not in dispute. The parties agreed a useful chronology relevant to the first two grounds of review as follows:

Date	Event	Document Ref
19.4.04	Newcrest lodged a Form 9 application to renew EPL 1024 for a two year period.	Ex. 1, p 125
6.10.04	The ETC requests renewal of EPL 1024 for a five year period.	Ex. 1, p 102, 103, 104. Exhibit 3A
1.12.04	EPL 1024 renewed for a further (five year) term until 20 May 2009.	Ex. 1, p 82
27.3.09	Newcrest lodged with the Department an application for renewal of EPL 1024 (by letter dated 24 March 2009), enclosing a Form 9 'Application for Renewal of Exploration Licence', special circumstances submission and credit card payment details and certifies all of the particulars required to accompany the application have been supplied and were correct.	Ex. A, p 1 Ex. A, p 66 Ex 1, p 60
27.3.09	Mr New, the Minister's delegate, checked the renewal application ('dealing') lodged by Newcrest.	Ex. 1, p 46
27.3.09	Details of the application were entered into the Department's Titles Administration System (TAS). The two year term sought was entered as 20 May 2011.	Ex. 1, p 55 and p 53
27.3.09	Mr McDonald acknowledged receipt of the renewal application of EPL 1024 and the renewal application of EL 3856 by letter to Ms Lisa Bowyer.	Ex. 1, p 52
30.3.09	Memo from Mr McDonald to Geological Survey (MEA) noting renewal application was received for 24 months	Ex. 1, p 51
13.5.09	Part 5 determination was made.	Ex. 1, p 12-14
20.5.09	Ms Bowyer sent a new page 1 of Form 9 'Application for Renewal of Exploration Licence' to Mr Capnerhurst "as requested."	Ex. A, p 16 Ex. A, p 39
20.5.09	Mr Capnerhurst replied to Ms Bowyer's email of 20 May 2009 with the words "Thanks Lisa."
25.5.09	Ms Bowyer (Newcrest) sent a new '"special circumstances submission" to Mr Capnerhurst "as requested." Mr Capnerhurst replied to Ms Bowyer on 27 May 2009 with words "Thanks Lisa, I will attach these to the renewal document."	Ex. A, p 19 Ex. A, p 42
6.09	Newcrest lodged its annual report on mineral exploration for the twelve months to 20 May 2009 for EPL 1024 and other exploration licences with the Department.	Ex. 5A (Confidential Exhibit), p1
2.6.09	Department minute paper was prepared by Mr Capnerhurst. A 60 month renewal was supported.	Ex. 1, p 48
2.6.09	Recommendation made by Mr Wood (documented on electronic file) that special circumstances renewal be granted.	Ex. A, p 54
2.6.09	Departmental Mineral Exploration Assessment Reports created.	Ex. 4A
25.6.09	Departmental Mineral Exploration Assessment Report created. Department recorded receipt of Newcrest's Annual Report for the period to 20 May 2009.	Ex. 4A
30.6.09	Mr Wood indicated support for special circumstances renewal of EPL 1024 (hand-written endorsement on minute paper of 2.6.09).	Ex. 1, p 48
3.7.09	A Department minute paper prepared by Mr McDonald recommended special circumstances renewal of EPL 1024 for five years. Mr New, the Minister's delegate, supported the recommendation on 7.7.09.	Ex. 1, p 42 and p 43
16.7.09	The ETC, of which Mr New was a member, considered the renewal of EPL 1024, and recommended special circumstances renewal for five years.	Ex. 1, p 40
4.8.09	Newcrest lodged its interim report on exploration with the Department.	Ex. A, p 57
25.8.09	Department sent the Instrument of Renewal to Newcrest for execution.	Ex. 1, p 21
21.9.09	Newcrest returned the executed Instrument of Renewal to the Department.	Ex. 1, p 19
8.10.09	The Minister's delegate, Mr New, executed the Instrument of Renewal on behalf of the Minister, and EPL 1024 was renewed for a further (five year) term until 20 May 2014.	Ex. 1, p 6
15.10.09	The TAS dealing for EPL 1024 was updated to reflect the grant of EPL 1024 on 8.10.09. The TAS system records the term of renewal sought as 20 May 2011.	Ex. 1, p 8 and p 9
4.12.09	Notice of renewal of EPL 1024 published in the Gazette.	Ex. 2A
15.3.11	GCR lodged competing Exploration Licence Applications, ELA 4201 and 4403 over EPL 1024 (and EL 3856).	Ex. 6A
21.11.11	Mr Capnerhurst forwarded by email to both Mr McDonald and Mr New, the five year special circumstances submission sent to him by Ms Bowyer on 25 May 2009.	Ex. A

Ground 1 No application for renewal of EPL 1024

20 The FAPOC state as follows for this ground:

40. On 20 May 2009 Newcrest sent to Kevin Capnerhurst, an employee of the Department in its Geological Survey Unit, an email that attached a new first page of the Form 9 "Application for renewal of an exploration licence" of the Renewal Application, which sought inter alia renewal of EPL 1024 for five years (the new first page).

Particulars

Email from Lisa Bowyer to Kevin Capnerhurst entitled "EL 3856, EPL 1024 - renewal amendment" transmitted at 3.37 pm.

41. On or about 20 May 2009 the first page of the Form 9 comprising the Renewal Application received by the Department on or about 27 March 2009 (the old first page) was removed from the Renewal Application and was destroyed and the new first page was attached to the remaining part of the Renewal Application.

Particulars

The Renewal Application discovered by the First Respondent in the verified List of Documents dated 2 August 2013, comprises the new first page attached to the remaining part of the Renewal Application. The First Respondent has not discovered the old first page.

42. The effect of removing the old first page from the Renewal Application on or about 20 May 2009, destroying the old first page and substituting the old first page for the new first page, was to:

(a) destroy the Renewal Application, such that there was no application for the renewal of EPL 1024; or

(b) render the Renewal Application invalid, as the Renewal Application was not complete without the old first page; or

(c) alternatively, render the Renewal Application invalid, as the Renewal Application containing the new front page was not certified as correct; or

(d) withdraw the Renewal Application and replace the Renewal Application with the new first page attached to the remaining part of the Renewal Application, such that the application for the renewal of EPL 1024 for five years was made on 20 May 2009.

Particulars

(i) There was no power under the Mining Act to amend or vary or supplement the Renewal Application on 20 May 2009, by substituting the old first page for the new first page. [amendment not relied on by Respondents]

(ii) The Renewal Application without the old first page or the application for the renewal of EPL 1024 for five years made on 20 May 2009 (comprising the new first page attached to the remaining part of the Renewal Application) did not comply with section 382 of the Mining Act.

(iii) The application for the renewal of EPL 1024 for five years made on 20 May 2009 (comprising the new first page attached to the remaining part of the Renewal Application) was not lodged with the Director-General within the time prescribed by section 113(2) of the Mining Act.

43. Further and at all material times, Mr Capnerhurst was not a person nominated by the Director-General to receive the application for the renewal of EPL 1024, within the meaning of regulation 56 of the Mining Regulation 2003 and was not authorised to receive the new first page.

Particulars

"Nominations of Persons to Receive Applications" for the purpose of regulation 56(2) of the Mining Regulation executed by the Director-General and dated 10 July 2006.

44. By reason the matters pleaded in the preceding paragraph, the application for the renewal of EPL 1024 was not received by, or lodged with, either the Director General or a person authorised to receive it, in breach of sections 113 and 382 of the Mining Act.

45. In the premises, there was no application for the renewal of EPL 1024 within the meaning of section 114(1) of the Mining Act and the Renewal was invalid and is of no force or effect.

21 In terms of the factual matters referred to in par 41 of the FAPOC, the Minister did not dispute that the original first page of the Form 9 application for renewal seeking a two year extension sent by Ms Bowyer of Newcrest on 27 March 2009 to the Department is not on the departmental files. It has not been discovered by the Minister during these proceedings. A copy of that original first page of the completed Form 9 was discovered from Newcrest (as articulated in par 41 FAPOC). While par 41 of the FAPOC asserts the original first page was destroyed there is no evidence about that. No departmental officer referred to in the FAPOC (Messrs Capnerhurst, McDonald and New) has given evidence. Whether destroyed or not, its (accepted) absence from the departmental file is a material fact underlying GCR's case in this ground of review.

22 The relevant events are identified in the chronology above. It is accepted by the Minister that the Form 9 application sent by Newcrest was an approved form. The Instructions for Completing Form 9 in exhibit A state:

Requirements for processing an Application

Applications for renewal of exploration licences require the completion of Form 9. Form 9 must not be altered and completed in accordance with the instructions below and must be lodged with the required fee and other accompanying material. Additional material to assist you to complete this application is available on the DPI website. www.dpi.nsw.gov.au (Minerals/Titles/Information Fact Sheets/Exploration Licence Renewals).

Applications may be lodged either in person, by facsimile, or by mail at one of the Department's offices at Maitland, Orange, Singleton, Wollongong and Lightning Ridge. The Exploration Licence Renewal Information Fact Sheet lists the location and other relevant details of Departmental offices.

...

Completion of the Form

It is essential that the form is properly completed and accompanied by the required material.

GCR's submissions

23 As the first page of the original Form 9 application lodged by Newcrest in March 2009 was removed and, by inference, destroyed there was no application filed within time which could be approved by the delegate Mr New. It is accepted by the Minister that the form was an approved form for the purposes of the Mining Act. Section 382(1) requires an application under the Mining Act to be in or to the effect of the approved form and informs the operation of s 113 and s 114. The object of strict compliance with the form in s 382 is to promote certainty in the granting and renewal of mining authorities. The Instructions for Completing Form 9 state the need for compliance clearly (exhibit A s D tab 6 p 127-129).

24 The removal of the first page and its replacement destroyed the renewal application so that no application capable of being determined was in existence after 20 May 2009. The application was rendered invalid as it was not complete without the new first page. The renewal application contained the new front page which was not certified as correct by Ms Bowyer as required by s 382 of the Mining Act. Absent strict compliance with s 382 the Form 9 was not duly completed as required by s 382 from 20 May 2009.

25 Neither the Minister nor his delegate had power to accept a varied or amended application for renewal under s 113 of the Mining Act. The source of power for renewal of an exploration licence rests solely in s 114(1) and it does not so permit. The structure of the Mining Act places clear emphasis on the importance of an application in several contexts in that Act. The Minister's determination under s 114 depends on the receipt of an application. The strict time limits for renewal in the Act suggest there is no implied authority to amend or permit amendment (nor is this submitted by the Respondents).

26 The statutory scheme provided for in the Mining Act relies on applications being lodged and considered by the Minister and does not discriminate between an application that is required by s 113(2) and complies with s 382 and "an application" to be considered by the Minister or a delegate under s 114(1). They must be the same. Section 135 makes this plain because the discretion to waive minor procedural matters relates to time and particulars to accompany any application inter alia, and does not relate to the mandated requirement for the duly completed form.

27 The new first page was received by a person not authorised to do so pursuant to cl 56(2) of the Mining Regulation, Mr Capnerhurst. The new first page is therefore deemed not to have been received.

28 Alternatively, the renewal application was effectively withdrawn by the removal of the original first page of the renewal application, that is a constructive withdrawal. No notice of withdrawal as provided for in s 130 was received by the Department.

29 The reasoning of the High Court in Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia [2012] HCA 25; (2012) 289 ALR 1 applies by analogy. The Chief Justice at [31] in considering whether the Industrial Relations Commission had jurisdiction to entertain an appeal from a commissioner held that the finding there was no industrial dispute was a matter which the commission had jurisdiction to decide as an essential preliminary to the exercise of its substantive jurisdiction. This is analogous to Mr New exercising his delegated power under s 114(1) of the Mining Act, the question notionally before him being whether or not there was an application under the Act for him to consider. Martin v State of New South Wales (No 14) [2012] NSWCA 46 is distinguishable as the failure to supply proper particulars of the applicant's financial resources and its program of works (the deficiencies) did not relate to the existence of the duly completed form under s 382.

30 As the Minister's delegate did not consider the duly completed application form with respect to the renewal of EPL1024 on 8 October 2009 it follows that the pre-condition to the exercise of the power to renew under s 114(1) did not exist and the renewal was invalid.

Minister's submissions

31 An application must be in physical form (written), as contemplated by s 382. There is no legal consequence if that form is destroyed, for example by fire or a coffee spill. Once lodged there is an application regardless of any change to the physical form. This is supported by s 117 and s 130.

32 Section 130 does not provide for informal or implied withdrawals such as that contended for by GCR. It is not open to characterise the correspondence between Newcrest and Mr Capnerhurst as comprising a "notice of withdrawal" for the purposes of s 130, and it was not lodged with the Director-General. Martin clearly establishes that a failure to comply with the approved form as required by s 382 does not invalidate the application and any licence granted in response to it. Section 382 requires the provision of information about an application in a particular manner (Martin at [32]). It is not concerned with the validity of an application, referring to the "form" of an application.

33 The absence of a duly completed form hinges on the removal of the first page of the application form lodged in March 2009 (two year renewal) and its replacement in May 2009 with a first page seeking a five year renewal. It is difficult to understand how this replacement resulted in the absence of a duly completed form particularly where the replacement page was in the approved form.

Newcrest's submissions

34 The Mining Act does not expressly provide that the physical destruction of an application gives rise to its legal extinction, so that such a construction must be implied. Sections 117, 130 and 131 imply that the application has a legal or juridical existence separate from the Form 9 lodged.

35 It is common ground that the 24 March 2009 application was a valid application for renewal of EPL1024, lodged within time and received by a duly authorised officer of the Department: FAPOC, pars 10, 23, 63. That application triggered the Minister's power to renew the authority under s 114. The Minister did not lose that power because an officer within the Department detached a page from the application form. The Minister would not have lost his power to renew if the application form had been accidentally lost or destroyed within the Department.

36 GCR's argument on this ground of review is inconsistent with s 131 of the Mining Act, which provides (and, in 2009, provided):

For the purposes of this Act, an application for an authority is pending from the time it is lodged until the time it is finally disposed of.

37 As s 131 makes clear, once an application has been "lodged", the application remains "pending", and therefore continues to exist, until it is "finally disposed of". The application may be finally disposed of by withdrawal (s 130), refusal (for example, s 22(1)(b)) or the grant of an authority (for example, s 22(1)(a)). Unless and until it is disposed of in one of those ways, the application continues its juridical existence, regardless of whether the application form is lost, altered or destroyed.

38 Section 382(1) of the Act expressly draws a distinction between an "application" and the "approved form", in this case, Form 9:

An application or tender under this Act must be in or to the effect of the approved form.

39 An application that is "to the effect of" Form 9 is not made on Form 9. Yet s 382(1) contemplates that it is still an "application" for the purposes of the Act.

Duly completed application under Mining Act in existence

40 It is necessary to construe the provisions of the Mining Act in light of the facts before the Court to understand how the statutory scheme is intended to operate in these circumstances and whether the irregularities identified by GCR give rise to invalidity of EPL 1024. It is fair to characterise the loss or destruction within the Department of a page of an application lodged for the purposes of the Mining Act and its effective replacement with another page as irregular and is not administrative action conducive to transparency of decision-making by the Department. Whether that irregularity has legal consequences under the Mining Act remains to be determined. The application of well established principles of statutory construction requires that a purposive approach be adopted, as I identified in Hurstville City Council v Minister for Planning and Infrastructure [2012] NSWLEC 134; (2012) 189 LGERA 269 at [55]:

Section 33 of the Interpretation Act 1987 requires a construction which promotes the purpose or object of an Act over one which would not. Guidance on applying this approach was provided by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky at 381 - 382. Their Honours stated that the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute", that a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals" and that "a court construing a statutory provision must strive to give meaning to every word of the provision". Brennan CJ and McHugh J in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 also referred to the necessity of applying a construction of a statute consistent with its purpose. Where words are plain and unambiguous they should be given their ordinary and grammatical meaning, per Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 305. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] the joint judgment (Hayne, Heydon, Crennan and Kiefel JJ) confirmed that statutory construction commences with a consideration of the language of the text, which may require consideration of the context, including the general purpose of the provision and the mischief it seeks to remedy. See also French CJ (in a separate judgment but agreeing with the orders of the joint judgment) at [4] - [5]. In Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704 at [12] Allsop P stated that in construing an Act the legal and historical context must be considered at the outset. At [13] his Honour emphasised the principles in Project Blue Sky.

41 In SAS Trustee Corporation v Woollard [2014] NSWCA 75 at [58] Bathurst CJ, (Tobias JA agreeing) cited Alcan and emphasised the importance of the words of the statute. Effect should be given to the objects of the Mining Act. These include in s 3A to provide an integrated framework for the effective regulation of authorisations for prospecting and mining operations.

42 GCR emphasised the structure of the Act which in Parts 3 (exploration licence), 4 (assessment leases) and 5 (mining leases) requires an application to be lodged containing particular information. The Minister may grant or refuse an exploration licence after considering an application: s 22. A similar provision exists in s 41 for assessment leases and s 63 for mining leases. All these provisions underline the importance of an application being properly made in order for the Minister's approval powers under the Mining Act to be exercised. Clause 56 of the Mining Regulation refers to applications generally and specifies in detail how these may be lodged as to manner (in person, by facsimile or by post), with whom in the Department, and with presumptions of when lodgement occurs. The power to renew an exploration licence in s 114(1) is conditional on an application being considered by the Minister. There are strict timeframes for the lodging of an application for renewal in s 113. Sections 113(2) and (3) specify when an application must be lodged. Section 382(1A) provides that a form is not duly completed unless completed in the manner specified or has attached the specified information.

43 The instructions for the completion of the Form 9 were in evidence. There is no dispute these were complied with in the application lodged by Newcrest in March 2009. All relevant statutory provisions were complied with by Newcrest when the application for renewal on the Form 9 was made in March 2009. At that stage the requirements for an application were met in terms of timing and content which suggests that the requirements of the Mining Act were then satisfied so that an application was on foot. In the absence of a notice of withdrawal under s 130 the application was pending under s 131.

44 As identified by Newcrest the word "form" appears in subsections (1) and (1A) of s 382. Subsections (1) and (2) of s 382 refer to an application separately from a form, suggesting these are not one and the same. This suggests that the Respondents' submission that the removal and replacement of a page of the written application and lodgement of a new special circumstances submission does not destroy the legal status of the application made within time and otherwise complying with the statute is correct. This construction is purposive because it supports the effective regulation of authorisations for prospecting and mining operations.

45 It must follow that GCR's case based on Mr Capnerhurst receiving when not authorised to do so the new first page of the application has no legal consequence in terms of the validity of the application. It was already duly completed and satisfied the requirement of the Mining Act. The later event did not change that legal status. Nor was there a constructive withdrawal of the application, and neither Respondent contended that there was a withdrawal, whether constructive or actual.

46 Martin concerned the absence of recently audited financial statements in an application for an exploration licence under the Mining Act. The Court of Appeal (Basten and Meagher JJA, Handley AJA) held that the deficiencies in relation to a completed form pursuant to s 382 did not affect the exercise of the Minister's power to grant an exploration licence under the Mining Act at [42]. Section 13 which specified particulars that had to be included in such an application was held not to impose an essential condition for the validity of an application to be determined by a court, at [31]. The question posed was whether compliance with s 13 and the required form of the application was a precondition to the exercise of the power to grant a licence. If so, was the decision-maker's satisfaction in that regard sufficient or was it a matter for the court to determine, at [36]. The decision-maker's discretion under s 22(1) to grant or refuse an application for a licence allowed that person to decide if the information was sufficient for the Department's purposes, at [40]. Applying the principles of Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 as to whether such a breach would give rise to invalidity of the approval, the absence of the information was held not to invalidate the application or the licence at [41]-[42]. Section 135 (waiver of minor procedural matters) was also referred to as indicating that Parliament did not intend to invalidate exploration licences granted on defective applications, at [44].

47 GCR sought to distinguish the decision in Martin because it was directed to the failure of an applicant to provide financial information in the approved form whereas GCR relied on the decision as confirming its argument that the non-existence of a duly completed form at the time of the grant of the authority would invalidate the approval. I have already determined in par 44 that the loss of a page of the application and its replacement by a page with different information and the lodgement of a different special circumstances submission does not result in the legal destruction of the valid application, one reason this submission fails.

48 GCR submitted that the existence of an application is a jurisdictional fact such as that in Public Service Association. That case concerned a completely different issue and statutory framework directed to establishing the jurisdiction of the Industrial Relations Commission and provides no assistance in this case. In any event I have found there was an application on foot at the time of the grant of the authority. Martin considered the provisions of the Mining Act relating to the grant of an exploration licence. The scheme of the Act in relation to applications for the renewal of exploration licences is generally similar. While the deficiency of the application form relied on by GCR is different to that in Martin the reasoning does apply by analogy and supports the Respondents' contentions. Applying by parity of reasoning the Court of Appeal in Martin the adequacy of Newcrest's application for renewal was a matter for the decision-maker.

49 GCR is unsuccessful on this ground of review.

Ground 2 No special circumstances submission to enable satisfaction under s 114(6)

50 The FAPOC provide in relation to this ground:

46. On 25 May 2009 Newcrest sent to Mr Capnerhurst an email that attached a new "Submission to Accompany Special Circumstances Renewal Application" which inter alia contained submissions of the special circumstances which may warrant the renewal of EPL 1024 for a period of five years (the new submission).

Particulars

Email from Ms Bowyer to Mr Capnerhurst entitled "EL 3856, EPL 1024 - amended renewal submission" transmitted at 11.08 am.

47. On 27 May 2009 (9.43 am) Mr Capnerhurst sent an email to Newcrest in relation to the new submission and stated: "I will attach these to the renewal document."

48. Contrary to the intent expressed in the email dated 27 May 2009, Mr Capnerhurst did not attach the new submission to the Renewal Application containing the new first page and the "Submission to Accompany Special Circumstances Renewal Application" received by the Department on or about 27 March 2009 (the old submission) formed part of the Renewal Application containing the new first page.

Particulars

(i) The Renewal Application discovered by the First Respondent in the verified List of Documents dated 2 August 2013, comprises the new front page attached to the remaining part of the Renewal Application and the old submission.

(ii) The Department file relating to the application for the renewal of EPL 1024, namely file no. T74/1892 (the file) discovered by the First Respondent in the verified List of Documents dated 2 August 2013, contains the old submission. The First Respondent has not discovered the new submission as forming part of the file before the Renewal.

49. In the premises, there was no special circumstances submission in support of the application for the renewal of EPL 1024 for more than two years, for the purpose of section 114(6) of the Mining Act and the Renewal was invalid and is of no force or effect.

50. Alternatively, if it be the fact that on or about 27 May 2009 Mr Capnerhurst removed the old submission from the Renewal Application and attached the new submission to the Renewal Application containing the new first page, the effect of removing the old submission and substituting the old submission for the new submission, was to:

(a) withdraw the old submission and replace the old submission with the new submission on or about 27 May 2009; or

(b) render the Renewal Application invalid, as the particulars of the Renewal Application containing the new first page and the new submission had not been certified as correct.

Particulars

(i) There was no power under the Mining Act to amend or vary or supplement the old submission on 20 May 2009, by substituting the old submission for the new submission.

(ii) The Renewal Application containing the new front page and the new submission did not comply with section 382 of the Mining Act.

(iii) The Renewal Application containing the new first page and the new submission was not lodged with the Director-General within the time prescribed by section 113(2) of the Mining Act.

51. Further, Mr Capnerhurst was not a person nominated by the Director-General to receive the application for the renewal of EPL 1024 which included the old submission, and was not authorised to receive the new submission.

Particulars

"Nominations of Persons to Receive Applications" for the purpose of regulation 56(2) of the Mining Regulation executed by the Director-General and dated 10 July 2006.

52. In the premises, there was no special circumstances submission in support of the application for the renewal of EPL 1024 for the purpose of section 114(6) of the Mining Act and the Renewal was invalid and is of no force or effect.

51 The Minister admitted that the delegate Mr New did not have before him at any stage Newcrest's amended special circumstances submission relating to a five year period and did not read it before he renewed EPL1024 for five years on 8 October 2009. The special circumstances report in support of a five year renewal period was not before the ETC at its meeting on 16 July 2009. In light of these admissions from the Minister there was no factual basis for that part of ground 2 identified in pars 26-29 of the FAPOC and these paragraphs have not been set out. Another matter to be noted concerns the Department's files, as more than one file was discovered. There is a Titles Branch file no T74/1892 (FAPOC par 48(ii)) and part files kept elsewhere such as in the Geological Survey Branch, also discovered by the Department and tendered by GCR (section B, exhibit A).

52 In answer to par 48 of the FAPOC, the Minister's defence stated that:

(a) the old submission and the new submission were both separate documents from the renewal application (whether with or without the old or new first page) and formed no part of the renewal application;

(b) Mr Capnerhurst provided the new submission to Mr Wood; and

(c) Mr Capnerhurst did not provide the new submission to the Titles Branch of the Department for inclusion on the file (which was maintained by that branch).

53 On 25 May 2009 Ms Boyer sent Mr Capnerhurst an email with PDF attachment which was entitled "Renewal Submission - EL3856 2009 amended.pdf" (exhibit A Vol 1 Tab 5). The email had as its subject "EL3856, EPL 1024 - Amended Renewal Submission". The text of the email was:

Dear Kevin,

Please find attached the amended Renewal Submission as requested. A brief statement and expenditure figures have been added for Year 3 to 5.

If you have any further queries please do not hesitate to contact me.

The Renewal Submission was for five years and was in relation to both EPL1024 and EL3856.

54 On 2 June 2009 Mr Capnerhurst of Mineral Exploration Assessment completed the minute paper dated 2 June 2009 (exhibit 1, page 48). Step 4 in Stage 2 refers to a Geo Survey minute. The minute paper stated:

Special Circumstances Renewal is recommended for sixty months as Newcrest has met the reporting requirements and greatly exceeded the expenditure commitment on this group of licences. Effective exploration continues to be carried out as they try and increase the resources of the Cadia Operations.

CONCLUSIONS

Special Circumstances Renewal policy criteria are satisfied

RECOMMENDATIONS

Special Circumstances Renewal is recommended. The period of renewal should be 60 months.

55 On 30 June 2009 Mr Wood, Principal Geologist in Minerals Exploration Assessment, supported the recommendation. He wrote on the minute paper and then signed his name:

Recommendation for special circumstances renewal of 6 units for 5 years is supported.

56 At the bottom of the minute paper is a reference to "Titles" in accordance with the last step of the check sheet for Stage 2 (exhibit 1, page 47). The minute paper was received and placed on the Titles Branch file. The amended special circumstances submission was not.

57 Stage 3 of the check sheet (exhibit 1, page 50) requires in Step 1 that a minute be prepared to the ETC via "Team leader". The document was prepared by Mr McDonald of Western Region Titles for the Exploration Titles Committee dated 3 July 2009 (exhibit 1, page 42). It states:

SPECIAL CIRCUMSTANCES POLICY SATISFIED: YES

GEOLOGICAL SURVEY RECOMMENDATION

Special Circumstances renewal is recommended and supported. The term of the renewal should be five years.

58 In accordance with Step 1 of Stage 3 the minute to the ETC was sent via the Team leader Mr New. In the minute to the Exploration Titles Committee Mr New (exhibit 1, page 43) wrote:

SCR (100%) for 5 years is supported

He initialled and dated it 7 July 2009.

GCR's submissions

59 Ground 2 only arises if there is an application to consider pursuant to s 114(1) on 8 October 2009 (I have held there was). Firstly, Mr New did not have the special circumstances submission for five years before him (admitted by the Minister). Consequently it is self evident that the Minister's delegate did not achieve the required state of satisfaction for the purposes of s 114(6).

60 The renewal application was an approved form and s 382(1A) therefore applies. Form 9 at question 10(a) requires that particulars of the special circumstances which may warrant the renewal of the licence for more than half the number of units currently covered by this licence be provided. Form 9 at question 11 requires certification that all of the particulars required to accompany the application have been supplied and are correct (exhibit A, s A, tab 2, p 5). The five year special circumstances document had to be supplied with the renewal application. That this was required can be inferred from Ms Bowyer's email to Mr Capnerhurst dated 25 May 2009 which states that the amended renewal submission as requested was attached with a brief statement and expenditure figures added for years 3 and 5. This practice is consistent with the Department's policy entitled "Five Year Terms for Exploration Licences" dated 18 May 1993. It is inexplicable how the Minister's delegate could consider a renewal application and be satisfied that special circumstances for the purposes of s 114(6) exist for a five year renewal, without a document on which to base that satisfaction. As a jurisdictional fact of the subjective variety its existence is to be determined to the reasonable satisfaction of the decision-maker and the Court must determine whether it is established that that the decision-maker was not reasonably satisfied per Barrick Australia Ltd v Williams [2009] NSWCA 275; (2009) 74 NSWLR 733.

61 The Minister's defence (par 39) asserted that the special circumstances submission was provided by Mr Capnerhurst to Mr Wood. However, this is a bare assertion unsupported by evidence and, in any event, does not assist the Minister as the Court has held that the obligation to achieve a state of satisfaction pursuant to s 114(6) falls on the decision-maker and he is not entitled to rely on knowledge of others in the Department as inferentially giving rise to his satisfaction: Gold and Copper Resources Pty Limited v Minister for Resources and Energy [2013] NSWLEC 66 (GCR (EL3856)) at [93].

62 The Minister suggested that the Minister's delegate was both aware of the need to be satisfied of the existence of special circumstances and that he was so satisfied with reference to the documents and circumstances outlined by Newcrest. GCR accepted that it has the onus of proof, to determine this issue the Court need only find as a matter of inference from the documentary evidence that the Minister's delegate did not form the mental state of satisfaction required by s 114(6).

63 The documents relied on by the Respondents do not assist the Court in determining on the balance of probabilities that the delegate was satisfied that special circumstances existed for a renewal for five years. Without the special circumstances submission for five years, the Minister's delegate could not have considered the "particulars of the special circumstances which may warrant the renewal of this licence for more than half the number of units currently covered by this licence" which were required by s 382 and the Form 9 to be included in the application with respect to the term of five years sought. The documents referred to by Newcrest merely point to material which demonstrates that other persons who may have seen the five year special circumstances submission were satisfied that special circumstances for renewal existed. This is insufficient because it does not establish affirmatively that the Minister's delegate was satisfied as to the pre-condition in s 114(6), and the principle in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 does not apply to Mr New as the Minister's delegate. The remaining documents relied on by Newcrest are irrelevant. Reliance on Mr New's handwritten not that "SCR (100%) for 5 years is supported" actually shows that he did not form the mental state of satisfaction required under s 114(6).

Minister's submissions

64 In order for GCR to succeed on this ground as pleaded, it would be necessary for it to demonstrate that the failure of Mr New to consider the submission could only compel one conclusion, namely that he did not hold the necessary mental state of satisfaction (see Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2010] NSWCA 353; (2010) 178 LGERA 411 at [72]). The futility of this ground then becomes readily apparent.

65 While the onus is not on the Minister to positively demonstrate that Mr New did hold the necessary mental state of satisfaction (see Caroona in the Court of Appeal at [57]-[58]), Newcrest's submissions specify a number of documents and circumstances that make it clear Mr New was both aware of the need for him to be satisfied of the existence of special circumstances and that he was so satisfied. First amongst these for current purposes is his own endorsement on the 3 July 2009 minute paper to the ETC "SCR (100%) for 5 years is supported" (page 43).

66 Minerals Exploration Assessment (MEA) is the specialist unit charged with, inter alia, providing advice whether special circumstances exist. Its minute of 2 June 2009 prepared by Mr Capnerhurst concluded that there were such special circumstances, that the special circumstances policy criteria were satisfied and recommended renewal for five years. The Principal Geologist of the MEA, Mr Wood, supported this recommendation. GCR's own witness, Mr Lewis, confirmed in cross-examination that the matters raised in the five year report were ones requiring geological expertise.

67 Given that the geologists in this specialist assessment unit concluded that there was evidence upon which to be satisfied that there were special circumstances, there is no basis for saying there was not any probative evidence for Mr New to be satisfied that there were special circumstances. None of the reasons given in the 2 June 2009 minute from MEA could be said to be irrelevant to the concept of special circumstances. That minute was in the Titles Branch file which was before Mr New both as a member of the ETC and afterwards until he made the decision to renew EPL1024. Mr New personally supported the renewal for special circumstances in the minute to the ETC.

68 During the hearing, GCR appeared to advance the proposition that the minute of 2 June 2009 from MEA prepared by Mr Capnerhurst was not based on his consideration of the special circumstances submission relating to the five year renewal. To the extent that it is still relevant, this proposition is denied and it is not made out on the evidence. Mr Capnerhurst received the submission at his request from Newcrest on 25 May 2009 (exhibit A, vol 1, section A, page 19) a mere eight days prior to his signing of the minute. The inference is overwhelming that in these circumstances Mr Capnerhurst did consider the document in preparing the minute. This is supported by GCR when, in the context of its fraud claim, it sought to highlight the close temporal connection between the receipt of the documents from Newcrest and the preparation of the minute by Mr Capnerhurst.

69 The minute dated 3 July 2009 is clearly based on the conclusion to that effect in the minute paper coming from MEA. There is also the following:

"GEOLOGICAL SURVEY RECOMMENDATION

Special Circumstances renewal is recommended and supported. The term of the renewal should be five years."

70 This is a statement of the recommendation in the minute paper from MEA within Geological Survey.

71 Mr New is entitled to consider and rely on the expertise and knowledge of officers in the Department in determining whether he was satisfied of the existence of special circumstances. Such reliance and consideration are clearly permissible especially given the geological expertise involved in the matter of special circumstances as set out above (see for example Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 30 per Gibbs CJ). Accordingly, for example, Mr New was entitled to and did consider the minute prepared by Mr Capnerhurst and endorsed by Mr Wood (which recommended special circumstances renewal). He could not substitute their mental state for his own but he could consider and rely on their expertise in reaching his own conclusion (which he did).

72 GCR cannot demonstrate, based on one piece of evidence, that having turned his mind to the issue, the delegate was not positively satisfied that special circumstances existed

Newcrest's submissions

73 GCR's case is limited to the fact that the five year special circumstances submission (exhibit A, p 19) was not before Mr New. That is not a basis on which the Court would find, on the balance of probabilities, that Mr New was not satisfied of the existence of special circumstances: Caroona in the Court of Appeal at 436 [58] per Tobias JA (Giles and Hodgson JJA agreeing at [1] and [2]). There is other material that shows Mr New was satisfied, and had a proper basis on which to be satisfied, of the existence of special circumstances:

(a) On 7 July 2009, Mr New himself wrote, "SCR (100%) for 5 years is supported" at exhibit A, p 101.

(b) Mr New had recommendations from the Department's expert geological staff, who had reviewed the proposed five year exploration program, that supported renewal for five years: exhibit A, p 99; exhibit A, p 100. Mr New was entitled to have regard to those recommendations. He was not required to read every underlying document for himself. The minute paper of 2 June 2009 (exhibit. A, p 99) recorded that EPL1024 was immediately adjacent to the eastern side of the Cadia Mine leases; that Newcrest had, in the past, met the reporting requirements and greatly exceeded the expenditure commitment; and that Newcrest was continuing effective exploration in order to try to increase the resources of the Cadia operations.

(c) Newcrest's two year special circumstances submission (exhibit A, p 71) was before Mr New and provided a basis for Mr New to be satisfied of the existence of special circumstances justifying renewal for five years. It recorded:

(i) EPL1024 formed an integral part of the Cadia district exploration project, which included the Cadia mines: at exhibit A, p 45.

(ii) Newcrest had drilled ten deep diamond drill holes in the EL3856/EPL1024 exploration area over the previous term: exhibit A, p 46.

(iii) Total expenditure on EPL1024 over the previous term had been $685,074: exhibit A, p 48.

(iv) Newcrest had greatly exceeded its minimum expenditure covenants: exhibit A, p 50.

(v) Newcrest was continuing to carry out licence-wide exploration: exhibit A, p 50.

(vi) Newcrest had ongoing major exploration and mining programs in place: exhibit A, p 50.

(d) Newcrest's 2009 Annual Report for EPL1024 at confidential exhibit 5A.

(e) The entry dated 2 June 2009 in the Department's electronic files (exhibit A, p 54), recording a recommendation by Mr Wood for special circumstances renewal.

(f) The mineral exploration assessment reports created on or around 2 June 2009 at exhibit 4A and the record of expenditure up to 25 June 2009 also at exhibit 4A.

(g) The document at exhibit A, p 56, which appears to be a contemporaneous record of the ETC's meeting of 16 July 2009 (which Mr New attended), records that both the Geological Survey Branch and the Titles Branch recommended special circumstances renewal.

No inference established that Mr New not satisfied

74 Under s 114(6) the Minister's delegate was required to be satisfied that "special circumstances exist that justify the renewal of the licence" over more than half of the area over which the exploration licence had existed as a precondition to the exercise of power in that section. It is agreed this section is engaged so that Mr New as the delegate had to be personally satisfied of the special circumstances (as I held in GCR (EL3856)). In GCR (EL3856) I held that the Carltona principle did not apply to a ministerial delegate such as Mr New so that he was required to form the requisite degree of satisfaction of special circumstances under s 114(6) at [91]-[92]. I rejected the Minister's submission that as long as someone in the Department was aware of a relevant matter that satisfies the statutory requirement of satisfaction of special circumstances, that was sufficient to satisfy s 114(6) at [90]. The evidence in that case was that Mr New formed a view in 2009 that special circumstances existed but the decision to renew was not until 2011 with no evidence that he was of the same view when the renewal was granted. There the Minister sought to rely on the expression of satisfaction by other departmental officers as satisfying the requirement in s 114(6), which submission I rejected. Here the Minister accepted that to achieve the requisite state of satisfaction directs attention to the mental state of the delegate personally (cf Carltona) which is consistent with my finding in GCR (EL3856). GCR's submissions are to similar effect but submitted that there is no evidence Mr New was satisfied. As Mr New has not given evidence GCR must establish its case on the basis of inference arising from the documentary record set out above at par 53-58.

75 In Vilro Pty Ltd (in voluntary liquidation) v Roads and Traffic Authority [2010] NSWLEC 234; (2010) 179 LGERA 47 I considered relevant authorities on whether inference or mere speculation arose from the evidence in that matter (a compulsory acquisition of land case). At [105] I cited Stephen J in Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155 quoting Dixon CJ in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 that a court may not choose between guesses. Facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth which the tribunal of fact may reasonably be satisfied. At 107 I held that the drawing of inferences in the absence of specific evidence requires that there be adequate facts on which to base an inference beyond a probability of events occurring. The principle in Jones v Dunkel recognises that an inference may be drawn about the absence of a witness but only where evidence already gives rise to an inference. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171 I held similarly at [93] citing Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5 where the High Court stated:

In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at p 678

76 In this ground GCR alleged that by inference Mr New failed to form the necessary state of satisfaction required in relation to the existence of special circumstances.

77 This ground as initially articulated by GCR was narrow and focussed solely on the accepted fact that the special circumstances submission for a five year period sent by Newcrest was not before Mr New at any stage of the renewal process. The Minister admitted that it was not. My understanding of this ground as articulated in submissions by GCR which evolved over the hearing is that Mr New as the delegate had to be satisfied that special circumstances existed justifying a five year renewal period, he did not form such satisfaction as he did not read the amended special circumstances submission for five years sent by Newcrest on 25 May 2009. That the statutory framework and departmental policy and practice identified in GCR's submissions underlines the importance of receiving a five year renewal submission if a five year renewal period is sought can be accepted but that does not advance GCR's case. Such a report was received by the Geological Survey Branch of the Department in May 2009 from Ms Bowyer. According to the agreed chronology set out in par 19, last item, the five year special circumstances submission was forwarded by Mr Capnerhurst to Mr McDonald and Mr New in November 2011, long after the decision to renew in 2009 by Mr New. GCR then argued that Mr New was not entitled to rely on the knowledge and opinion of others in the Department in reaching a state of subjective satisfaction. Further GCR appeared to dispute that Mr Capnerhurst and Mr Wood read the five year special circumstances submission in the Geological Survey Branch before preparing and endorsing the minute dated 2 June 2009 to the effect that the special circumstances requirement was satisfied.

78 The ground as articulated in the FAPOC does not reflect these submissions. Paragraph 48 of the FAPOC states that the Titles Branch file (T74/1892) as discovered did not contain the five year submission only the two year submission (the old submission) and the five year submission was not part of the file (meaning the Titles Branch file) before renewal. The Minister submitted that the five year special circumstances submission remained on the part papers kept in the Geological Survey Branch. The documentary record confirms this as this submission was discovered by the Minister from other files held in the Department, tendered by GCR (exhibit A, section B, tab 6). That the five year special circumstances submission was not on the Titles Branch file alone is probative of nothing. The premise in par 49 of the FAPOC is not established.

79 Paragraph 50 of the FAPOC appears to relate to ground 1, focussing on the absence of the five year special circumstances submission from the application for renewal lodged by Newcrest on the Titles Branch file. My reasoning in ground 1 also applies to that contention. In other words, I consider a duly completed application was filed by Newcrest within time which satisfied the requirements of the Mining Act. Paragraph 51 alleges that Mr Capnerhurst was not authorised to receive the five year submission as he was not nominated for that purpose under cl 56(2) of the Mining Regulation. There is no legal consequence arising from that contention, even if correct, in light of my finding on ground 1. I will turn to the case as now articulated by GCR, as outlined above in par 77.

80 GCR, accepting that it has the onus of proof, submitted the Court need only find as a matter of inference from the documentary evidence that the Minister's delegate did not form the mental state of satisfaction required by s 114(6). That submission understates the onus borne by GCR because for GCR to succeed a negative finding of satisfaction must be found, per Caroona in the Court of Appeal at [72], to arise by inference given that the evidence in relation to this ground consists entirely of the Department's files. In Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2010] NSWLEC 1; (2010) 172 LGERA 25 Preston J held that the burden of the onus of proof of whether the Minister (in that case) had not formed the requisite state of satisfaction was not discharged given the documentary record before the Minister, including his signature on the relevant departmental briefing paper. The Court identified at [70] that the applicant could have availed itself of court processes such as the administration of interrogatories, requesting under Pt 4 r 4.3 of the Land and Environment Court Rules 2007 that the Minister provide reasons in order to fulfil its burden of establishing the Minister did not form the required state of satisfaction. No such steps have been taken by GCR in these proceedings. While in GCR (EL 3856) the absence of such steps was not fatal to GCR's success on one ground of review, the matter in issue was different to this matter. I held that an inference could be drawn in the absence of any expression of satisfaction by Mr New in temporal proximity to the issuing of a renewal, unlike this matter where there is such a statement.

81 Contrary to GCR's submission, the delegate's own note stating "SCR (100%) for 5 years is supported" on the minute dated 2 June 2009 from the Geological Survey Branch is evidence that he did form the requisite mental state of satisfaction as to special circumstances on or about 7 July 2009. Criticism by GCR that the word "supported" was used rather than satisfied elevates semantics over substance, as the Minister submitted. That evidence negatives the inference that GCR must persuade the Court to draw. GCR has failed to discharge the onus of proof of demonstrating that the delegate did not achieve that state.

82 In light of the Minister's submission that Mr Capnerhurst and Mr Wood considered the five year special circumstances submission, GCR's case evolved to allege that Mr New could not have formed a view as to satisfaction as there is no evidence that Mr Capnerhurst and Mr Wood read the five year special circumstances submission before preparing and endorsing the minute of 2 June 2009 sent to the Titles Branch and Mr New. As the Minister submitted, the inference that arises more readily from the documents in the Geological Survey Branch part papers is that the five year special circumstances submission was available to both officers. To draw on the discussion of authorities at par 75, there is no basis for the inference that they did not read the five year special circumstances submission and GCR's submission is speculation in my view. There are no facts on which GCR can rely for an inference higher than a probability of that event occurring, that is that the officers did not read the report. Alternatively, the facts give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture, per Bradshaw at 5.

83 GCR has not made out its case as the documentary evidence does not give rise to the inference which GCR sought to prove. GCR is unsuccessful on this ground of review.

Ground 3 No Part 5 Approval under Environmental Planning and Assessment Act 1979 for five year renewal period

84 Section 110 of the Environmental Planning and Assessment Act 1979 (the EPA Act) defines "activity" for the purposes of Pt 5 as including the use of land and the carrying out of work. Sections 110E, 111 and 112 provide:

110E Exemptions for certain activities

Sections 111 and 112 do not apply to or in respect of the following (despite the terms of those sections):

(a) a modification of an activity, whose environmental impact has already been considered, that will reduce its overall environmental impact,

(b) a routine activity (such as the maintenance of infrastructure) that the Minister determines has a low environmental impact and that is carried out in accordance with a code approved by the Minister,

(c) an activity (or part of an activity) that has been approved, or is to be carried out, by another determining authority after environmental assessment in accordance with this Part.

111 Duty to consider environmental impact

(1) For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity.

...

112 Decision of determining authority in relation to certain activities

(1) A determining authority shall not carry out an activity, or grant an approval in relation to an activity, being an activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats, unless:

(a) the determining authority has obtained or been furnished with and has examined and considered an environmental impact statement in respect of the activity:

(i) prepared in the prescribed form and manner by or on behalf of the proponent, and

(ii) except where the proponent is the determining authority, submitted to the determining authority in the prescribed manner,

...

Clause 228 of the Environmental Planning and Assessment Regulation 2000 (the EPA Regulation) specifies a large number of factors to be taken into account when consideration is being given to the likely impact of an activity on the environment.

85 The FAPOC provides in relation to this ground:

53. The Renewal Application required an approval pursuant to section 111 of the Environmental Planning and Assessment Act, 1979 (NSW) (the "EPA Act").

Particulars

(a) The matters the subject of the Renewal Application are an activity within the meaning [sic] section 110 EPA Act (the "Activity").

(b) The grant of approval to the Renewal Application was, or would be, an approval within the meaning of section 110 EPA Act.

(c) The Minister was, and is, a determining authority within the meaning of section 110 EPA Act).

54. By reasons of the matters pleaded in the preceding paragraph, the Minister was under a duty to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the Activity.

55. On or about 13 May 2009 the Minister determined pursuant to Part 5 of the EPA Act inter alia that the activities permitted under a renewal of EPL 1024 are not likely to significantly affect the environment and that an environmental impact statement was not required (the Part 5 approval).

Particulars

Ministerial briefing "Grant and/or Renewal of Exploration Licences and Petroleum Exploration Licences - Part 5 Determinations" dated 1 May 2009 and executed by the Minister on 13 May 2009.

56. At the time of the Part 5 approval, the Renewal Application sought the renewal of EPL 1024 for two years.

57. Before the Renewal, the Minister did not assess the activities permitted under a renewal of EPL 1024 for five years as required by section 111 of the EPA Act.

Particulars

The file relating to the application for the renewal of EPL 1024, discovered by the First Respondent in the verified List of Documents dated 2 August 2013, contains the Part 5 approval. The First Respondent has not discovered any later approval made under Part 5 before the Renewal.

58. There was no Part 5 approval as required by section 111 of the EPA Act in relation to the application for the renewal of EPL 1024 for five years.

59. By reason of the matters pleaded at paragraphs [53] to [58] the Minister failed to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the Activity.

60. Alternatively the Minister could not be satisfied the Activity was not likely to affect the environment.

Particulars

The file relating to the application for the renewal of EPL 1024, discovered by the First Respondent in the verified List of Documents dated 2 August 2013, contains the Part 5 approval. The First Respondent has not discovered any later approval made under Part 5 before the Renewal.

86 In a ministerial briefing titled "Grant and/or renewal of exploration licences and petroleum licences - Part 5 determinations" it was recommended that

The Minister determine, subject to compliance with the proposed relevant conditions contained in Tabs A, B and C, that the activities permitted under the licences, and any licences granted in satisfaction of the applications listed in the attached schedule, are not likely to significantly affect the environment including critical habitat or threatened species, or populations or ecological communities, or their habitats, and that environmental impact statements are not required.

87 The Minister made this recommendation on 13 May 2009 (exhibit A, section C, tab 16, p 97).

88 The briefing paper (exhibit A, section C, tab 16, p 98) states that the requirements for the Minister considering an activity under Pt 5 of the EPA Act are twofold in which the Minister must consider to the "fullest extent possible" all matters likely to affect the environment due to that activity and if the activity is likely to have a significant affect on the environment the Minister must consider an environmental impact statement (EIS) as part of the assessment process.

89 The briefing paper goes on to state that the Department of Primary Industries "has indicated that, subject to compliance with the proposed relevant conditions, the attached applications are not likely to have a significant effect on the environment and therefore an EIS is not required at this time."

90 The briefing paper also states:

Under conditions attached to the grant of an exploration licence, proponents are restricted to undertaking activities which have little impact on the environment. Activities which may have an impact on the environment require notification to the Department for assessment and may subsequently require further Part 5 determination/s and further approval/s under the EP&A Act.

The conditions to be included in licences are:

· Condition No.1 of Exploration Licence Conditions 2008 (Tab A), included in exploration licences and renewals of licences;

· Conditions Nos. 1 and 2 of Low-Impact Exploration Licence Conditions 2008 (Tab B), included in low impact exploration licences; and

· Condition No.1 of the Second Schedule Petroleum Licence Conditions - 2008 (Tab C), included in petroleum exploration licences.

91 Although drafted as alternative, the grounds in par 59 and 60 of the FAPOC are directly linked according to GCR's written and oral submissions (TS 207, 211, 241 and 10 of 19 December). There was much debate during the hearing about whether par 60 identified a legal claim based on s 112(1) of the EPA Act, GCR maintained that it did. GCR submitted that the claim based on s 112 in par 60 was limited to the earlier paragraphs, being the alleged breach of s 111. That breach of s 112 gave rise to an error in the determination of a jurisdictional fact by the Minister which entitled them to the relief sought of a declaration of invalidity of EPL1024. The Respondents maintained that par 60 must be a claim under s 111, as was identified clearly in their respective written submissions filed in preparation for the hearing. Par 60 was not in any event a ground known in law if intended to rely on s 112(1) as it referred to the Minister being satisfied, a subjective test. The test in s 112 is an objective one of whether an activity is likely to significantly affect the environment. Further, breaches of s 112 are different from and separate to alleged breaches of s 111. I will proceed on the basis that par 60 is intended to identify a breach of s 112 based in turn on the breach of s 111 identified in the preceding paragraphs as that is the case GCR wished to pursue. There are legal difficulties with this ground of review as articulated.

92 As the Respondents submitted, alleged breaches of s 111 and s 112 are different in nature, reflecting the different drafting in these two sections. A breach of section 111 of failing to consider to the fullest extent possible environmental impacts gives rise to injunctive relief restraining the potentially environmentally harmful activity. Section 112 is directed to whether, determined objectively, an activity is likely to significantly affect the environment and therefore whether an EIS is required under subsection (1). The most recent case for several years to fully consider s 112 is Fullerton Cove Residents Action Group Inc v Dart Energy Ltd [2013] NSWLEC 38; (2013) 195 LGERA 329. Pepper J concluded at [300] after an exhaustive analysis of authorities and from her own application of first principles that s 112(1) of the EPA Act gives rise to a jurisdictional fact that the Court must determine for itself on all the available evidence whether an activity is likely to significantly affect the environment. Whilst I am not bound by Pepper J's conclusions, her reasoning at [266]-[299] is not plainly wrong and I would apply her Honour's findings in the interests of judicial comity. Interestingly her Honour identified at [234] that the question had not been authoritatively determined hence her Honour's review of a large number of cases which have considered s 112. Pepper J refers to Sustainable Fishing and Tourism Inc v Minister for Fisheries [2000] NSWLEC 2; (2000) 106 LGERA 322, which GCR relied on, in relation to s 111 (not s 112) at [129].

93 Sustainable Fishing was determined in 2000 at a time when the approach to the construction of s 112 was that it provided for a subjective evaluation by the relevant Minister. That construction of s 112 is no longer supported by subsequent cases decided since Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 as now confirmed by Fullerton.

94 Paragraph 60 of the FAPOC as framed seeks to address whether the Minister was subjectively satisfied the activity was not likely to [significantly] affect the environment. This does not reflect the wording or present authority on the construction of s 112. Further, a breach of s 112 is separate and distinct from a breach of s 111. A failure to consider environmental impacts under s 111 cannot found a breach of s 112 in the sense that the two sections have different work to do. Paragraph 60 of the FAPOC does not reflect a challenge to a decision under s 112 known to the law. Further a breach of s 111 cannot be relied on by GCR as a breach of s 112.

95 This means there is no utility in further considering this ground of appeal as GCR accepted that it could only get the declaratory relief sought if a breach of s 112 was established as that breach would be jurisdictional (unlike a breach of s 111). Although statements were made in written submissions that a breach of s 111 was jurisdictional this was not pressed orally. The duty under s 111 has been considered most recently in Fullerton at [85] and the authorities referred to therein of Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353 at 366; (1986) 61 LGRA 401; Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598 at [68]; Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346 at [158] and Oshlack v Rous Water (No 2) [2012] NSWLEC 111; (2012) 189 LGERA 243 at [65]-[68].

96 Another threshold difficulty with the case as pleaded and argued is that it is unclear that a breach if established under Pt 5 of the EPA Act can give rise to a finding of a breach of the Mining Act. The remedy sought by GCR is a declaration of invalidity of an exploration prospecting licence under the Mining Act not a remedy under the EPA Act, but how that is possible legally was never spelt out in my view. The submissions of GCR which addressed that point stated that s 111 is a jurisdictional fact citing Goldberg v Waverley Council [2007] NSWLEC 259; (2007) 156 LGERA 27 at [20] applying Bailey v Forestry Commission of NSW (1989) 67 LGRA 200 at 211.

97 The remedy available for a breach of s 111 is an injunctive order restraining an activity (see for example F Hannan Pty Ltd v Electricity Commission of New South Wales [No. 3] (1985) 66 LGRA 306 and Jarasius v Forestry Commission of NSW (No 1) (1990) 71 LGRA 79), which is not the remedy sought by GCR. My determination that the s 112 ground as articulated in par 60 of the FAPOC is not maintainable suggests this ground now lacks utility as a breach of s 112, if established, founded GCR's claim of a failure by the Minister to determine a jurisdictional fact. A breach of s 111, if established, cannot found the declaratory relief sought. As this ground of review fails at the outset I have not identified all of the parties' submissions in the judgment.

Ground 4 Renewal procured by false and misleading representations

98 The FAPOC on this ground is extensive. I will set it out in its entirety partly because it is difficult to summarise and also because the serious nature of the allegations of fraudulent behaviour based on the making of certain representations by three named departmental officers and an employee of Newcrest require precise analysis in the context of the case GCR sought to put.

99 The FAPOC provide:

63. On or about 27 March 2009 the Renewal Application was received in the Department by Wayne McDonald, an employee of the Department in its Titles Section and a person nominated by the Director-General for the purpose of regulation 56(2) of the Mining Regulation, 2003 to receive the application for the renewal of EPL 1024.

Particulars

The last page of Renewal Application discovered by the First Respondent in the verified List of Documents dated 2 August 2013, contains the receipt signed by Mr McDonald and dated 27 March 2009.

64. On or about 27 March 2009 the Renewal Application was checked by Robert New, an employee of the Department in its Titles (Minerals) Unit and the Team Leader Western Division.

Particulars

The "Renewal of Exploration Licences Check Sheet" discovered by the First Respondent in the verified List of Documents dated 2 August 2013, records the application for the renewal of EPL 1024 being "checked" by Mr New on 27 March 2009.

65. At all material times, Mr New was authorised as the Minister's delegate to renew EPL 1024 or refuse the application for the renewal of EPL 1024, pursuant to Instrument of Delegation executed by the Minister and dated 8 December 2004.

66. At all material times from 27 March 2009, Mr McDonald and Mr New were aware that the Renewal Application and the old submission, sought renewal of EPL 1024 for only two years.

67. On 20 May 2009 Newcrest sent to Mr Capnerhurst the email that attached the new first page.

Particulars

Email from Ms Bowyer to Mr Capnerhurst entitled "EL 3856, EPL 1024 - renewal amendment" transmitted at 3.37 pm.

[Bowyer]

68. At the time of the email dated 20 May 2009, Newcrest by its authorised servant or agent, Ms Bowyer knew:

(a) that EPL 1024 was to expire at midnight on 20 May 2009;

(b) that the time for lodging a renewal application for EPL 1024 had expired on about 20 April 2009 by reason of section 113(2) of the Mining Act;

(c) that all of the particulars required to accompany the Renewal Application had to be certified as correct and that she had certified, inter alia, the particulars accompanying the Renewal Application to be correct before it was lodged with the Department on about 24 March 2009; and

(d) that the Renewal Application was accompanied by the old submission and that her certification of the Renewal Application included the particulars contained in the old submission.

Particulars

(i) Ms Bowyer's knowledge of these matters is to be inferred from her position as the Australian Tenement Manager for Newcrest and the performance of her functions in that role, including the completion and lodgment of the Renewal Application on or about 24 March 2009 by post to the Department and the probity form behind Tab 33 of Newcrest's discovered documents;

(ii) Ms Bowyer's knowledge of these matters is also to be inferred from the document entitled "Instructions for Completing Form 9" and from "Primefacts July 2005" entitled "Exploration Licence Renewals" at www.dpi.nsw.gov.au.

69. By sending the email to Mr Capnerhurst on 20 May 2009, Newcrest intended the old first page of the Renewal Application to be removed and replaced or substituted by the new first page, so that the new first page and the remaining part of the Renewal Application appeared on its face to have been lodged with the Department on or about 24 March 2009 and seek renewal of EPL 1024 for five years.

Particulars

The intention is to be inferred from the email from Ms Bowyer to Mr Capnerhurst entitled "EL 3856, EPL 1024 - renewal amendment" transmitted on 20 May 2009 at 3.37 pm.

70. On or about 20 May 2009 the old first page was removed from the Renewal Application and was destroyed and the new first page was attached to the remaining part of the Renewal Application and placed on the file.

Particulars

The Renewal Application discovered by the First Respondent in the verified List of Documents dated 2 August 2013, comprises the new front page attached to the remaining part of the Renewal Application. The First Respondent has not discovered the old first page.

71. On 25 May 2009 Newcrest sent to Mr Capnerhurst an email that attached the new submission.

Particulars

Email from Ms Bowyer to Mr Capnerhurst entitled "EL 3856, EPL 1024 - amended renewal submission" transmitted at 11.08 am.

72. By sending the email to Mr Capnerhurst on 25 May 2009, Newcrest intended the old submission to be removed from the Renewal Application and replaced or substituted by the new submission, so that the particulars of the special circumstances which may warrant the renewal of EPL 1024 for five years contained in the new submission, appeared on its face to have been lodged with the Department on or about 24 March 2009 with the Renewal Application containing the new first page.

Particulars

The intention is to be inferred from the email from Ms Bowyer to Mr Capnerhurst entitled "EL 3856, EPL 1024 - renewal amendment" transmitted on 20 May 2009 at 3.37 pm, the email from Ms Bowyer to Mr Capnerhurst entitled "EL 3856, EPL 1024 - amended renewal submission" transmitted on 25 May 2009 at 11.08 am, the new submission and the email from Mr Capnerhurst to Ms Bowyer transmitted on 27 May 2009 at 9.43 am.

73. On 27 May 2009 (9.43 am) Mr Capnerhurst sent an email to Newcrest in relation to the new submission and stated: "I will attach these to the renewal document."

74. Contrary to the intent expressed in the email dated 27 May 2009, Mr Capnerhurst did not attach the new submission to the Renewal Application containing the new first page and the old submission formed part of the Renewal Application containing the new first page that was placed on the file.

Particulars

(i) The Renewal Application discovered by the First Respondent in the verified List of Documents dated 2 August 2013, comprises the new front page attached to the remaining part of the Renewal Application and the old submission.

(ii) The file discovered by the First Respondent in the verified List of Documents dated 2 August 2013, contains the old submission. The First Respondent has not discovered the new submission as forming part of the file before the Renewal.

75. At the time of sending the emails dated 20 and 25 May 2009, Newcrest by its authorised servant or agent, Ms Bowyer knew:

(a) that under section 114 of the Mining Act, the Minister would consider the Renewal Application and may renew the exploration licence or refuse the application;

(b) that in practice, Mr Capnerhurst, Mr McDonald and/or Mr New would be considering the Renewal Application for the purpose of section 114 of the Mining Act and would recommend renewal of the exploration licence or the refusal of the application to the Exploration Titles Committee (ETC);

(c) that in practice, the application for the renewal of EPL 1024 would be considered by the ETC, who would recommend renewal of the exploration licence or refusal of the application;

(d) that Mr New was authorised as the Minister's delegate to renew EPL 1024 or refuse the Renewal Application; and

(e) that Mr New would implement the recommendation of the ETC with respect to the renewal of EPL 1024 or the refusal of the application.

Particulars

Ms Bowyer's knowledge of these matters is to be inferred from her position as the Australian Tenement Manager for Newcrest and the performance of her functions in that role.

Representations

76. On and after 20 May 2009, the new first page attached to the remaining part of the Renewal Application that was placed on the file, conveyed the following representations to Mr Capnerhurst, Mr McDonald, Mr New and the ETC:

(a) that the application for the renewal of EPL 1024 for 5 years had been received by the Department within the time prescribed by s 113(2) of the Mining Act and on or about 27 March 2009; and

(b) that the application for the renewal of EPL 1024 for 5 years had been certified as correct at the time of receipt by the Department or about 27 March 2009 (the representations).

77. At the time of transmitting the attachment to the email dated 20 May 2009, Newcrest intended to convey to Mr Capnerhurst, Mr McDonald, Mr New and the ETC the representations.

78. Each of the representations was false or misleading and known to be false or misleading by Newcrest on and from 20 May 2009.

Particulars

(i) The new first page (attached to the remaining part of the Renewal Application) seeking renewal of EPL 1024 for 5 years had not been lodged within the time prescribed by section 113(2) of the Mining Act, but was lodged by email on 20 May 2009.

(ii) The new first page attached to the remaining part of the Renewal Application seeking renewal of EPL 1024 for 5 years had not been certified as correct and the Departments policy document headed "Policy on Renewal of Exploration Licences for minerals".

79. At the time of transmitting the emails on 20 and 25 May 2009, section 374 of the Mining Act provided inter alia that a person must not in or in connection with an application furnish information that the person knows to be false or misleading in a material particular.

80. Each of the representations was false or misleading within the meaning of section 374 of the Mining Act.

81. Further, each of the representations were made by Newcrest to the ETC, to induce a belief that a certified renewal application for EPL 1024 for five years had been lodged within the time prescribed by s 113(2) of the Mining Act and to procure the renewal of EPL 1024 for five years rather than for only two years.

Mr Capnerhurst

82. Each of the representations were known to be false or misleading by Mr Capnerhurst on and from 20 May 2009.

Particulars

Mr Capnerhurst's knowledge is to be inferred from his receipt of the emails dated 20 and 25 May 2009 and from his email dated 27 May 2009.

83. By causing the old first page to be removed and the new first page to become attached to the remaining part of the Renewal Application, Mr Capnerhurst made the representations to Mr McDonald, Mr New and the ETC.

84. On or about 2 June 2009 Mr Capnerhurst prepared and signed a minute paper regarding the "special circumstances renewal for greater than 50% area" of EPL 1024 that recommended inter alia special circumstance renewal of EPL 1024 for five years (the minute paper), notwithstanding that to his knowledge, the new first page attached to the remaining part of the Renewal Application and the particulars contained in the new submission were not certified as correct and had been lodged out of time.

85. At the time of signing the minute paper, Mr Capnerhurst knew that the representations were false or misleading and/or that the representations were false or misleading within the meaning of section 374 of the Mining Act and knew that the minute paper would be considered and relied upon by the ETC.

86. Further and at the time Mr Capnerhurst signed the minute paper, he knew that in practice, the ETC would recommend renewal of the exploration licence or the refusal of the application and that Mr New would implement the recommendation of the ETC as the Minister's delegate.

Particulars

Mr Capnerhurst's knowledge is to be inferred from the 'Renewal of Exploration Licences Check Sheet' and in particular, the procedure for stage 3, the 'Policy on Renewal of Exploration Licences for minerals' effective from 1 November 2004 and the 'Procedure Manual - Renewals of Exploration Licences and Associated Matters' revision March 2006 (the policy and procedure).

87. By signing the minute paper without correcting the representations that he knew to be false or misleading, Mr Capnerhurst made or was knowingly concerned in the making of the representations to Mr McDonald, Mr New and the ETC.

Particulars

The minute paper recommended inter alia special circumstance renewal of EPL 1024 for five years.

88. Further and prior to 30 June 2009, Mr Capnerhurst caused the minute paper to be provided [sic] Colin Wood, the Principal Geologist of the Department, without correcting the representations that he knew to be false or misleading.

89. On 30 June 2009 the recommendation contained in the minute paper was endorsed as supported by Mr Wood.

90. In the premises, the endorsed support of Mr Wood for the special circumstances renewal of EPL 1024 for five years was procured by the representations that were false or misleading and Mr Capnerhurst's failure to correct the representations.

91. Further, Mr Capnerhurst made the representations and/or signed the minute paper without correcting the representations that he knew to be false or misleading and notwithstanding that to his knowledge, the new first page attached to the remaining part of the Renewal Application on the file had not been received by the Department on 27 March 2009 or certified as correct, so as to induce a belief that a certified renewal application of EPL 1024 for five years had been lodged within the time prescribed by s 113(2) of the Mining Act and obtain from the ETC the recommendation of renewal for five years rather than for only two years.

Mr McDonald

92. Each of the representations were known to be false or misleading by Mr McDonald from at least about 3 July 2009.

Particulars

Mr McDonald's knowledge is to be inferred from his receipt of the Renewal Application on 27 March 2009, his subsequent consideration of the two year application on 30 March 2009 and his further consideration of the application for the renewal of EPL 1024 for five years and the file.

93. Further and on or about 3 July 2009 Mr McDonald prepared and signed a recommendation to the ETC that relied on the new first page attached to the remaining part of the Renewal Application on the file and recommended inter alia special circumstances renewal for five years (the recommendation).

Particulars

The recommendation discovered by the First Respondent in the verified List of Documents dated 2 August 2013, contains the following: "TERM SOUGHT: Five (5) Years."

94. At the time of signing the recommendation, Mr McDonald knew that the representations were false or misleading and/or that the representations were false or misleading within the meaning of section 374 of the Mining Actand knew that the recommendation would be considered and relied upon by the ETC.

95. Further and at the time Mr McDonald signed the recommendation, he knew that in practice, the ETC would recommend renewal of the exploration licence or the refusal of the application and that Mr New would implement the recommendation of the ETC as the Minister's delegate.

Particulars

Mr McDonald's knowledge is to be inferred from the policy and procedure

96. By signing the recommendation without correcting the representations that he knew to be false or misleading, Mr McDonald made or was knowingly concerned in the making of the representations to Mr New and the ETC.

Particulars

The recommendation contains the following: "TERM SOUGHT: Five (5) Years".

97. Mr McDonald prepared and signed the recommendation without correcting the representations that he knew to be false or misleading and notwithstanding that to his knowledge, the new first page attached to the remaining part of the Renewal Application on the file had not been received by the Department on 27 March 2009 or certified as correct, so as to induce a belief that a certified renewal application of EPL 1024 for five years had been lodged within the time prescribed by s 113(2) of the Mining Act and obtain from the ETC the recommendation of renewal for five years rather than for only two years.

Mr New

98. On or before 7 July 2009, Mr McDonald caused the recommendation to be provided to Mr New.

99. From at least the time of receiving the recommendation, Mr New was aware that the Renewal Application sought the renewal of EPL 1024 for two years and that each of the representations were false or misleading.

Particulars

Mr New's knowledge is to be inferred from his checking of the Renewal Application on 27 March 2009 as a two year application and his subsequent consideration of the application for the renewal of EPL 1024 for five years and the file.

100. On or about 7 July 2009 the recommendation was endorsed as supported by Mr New.

101. At the time of endorsing his support to the recommendation, Mr New was aware that the representations were false or misleading and/or that the representations were false or misleading within the meaning of section 374 of the Mining Act and knew that the recommendation endorsed by him would be considered and relied upon by the ETC.

102. Mr New endorsed the recommendation as supported, without correcting the representations that he knew to be false or misleading and notwithstanding that to his knowledge, the new first page attached to the remaining part of the Renewal Application on the file had not been received by the Department on 27 March 2009 or certified as correct.

103. Further and at the time Mr New endorsed the recommendation as supported, he knew that in practice, the ETC would recommend renewal of the exploration licence or the refusal of the application and that he would implement the recommendation of the ETC as the Minister's delegate.

Particulars

Mr New's knowledge is to be inferred from the policy and procedure.

ETC

104. On or about 16 July 2009 a meeting of the ETC was convened and the attendees:

(a) considered the application for the renewal of EPL 1024 for five years (comprising the new first page attached to the remaining part of the Renewal Application on the file) which conveyed the representations; and

(b) presumed the regularity of the application for the renewal of EPL 1024 for five years; and

(c) considered the minute paper (as endorsed by Mr Wood) and the recommendation as supported by Mr New; and

(d) recommended the renewal of 6 units for five years.

Particulars

Minutes of the Exploration Titles Committee meeting dated 16 July 2009.

105. Mr New attended the ETC meeting on 16 July 2009, without correcting the representations that he knew to be false or misleading and notwithstanding that to his knowledge, the new first page attached to the remaining part of the Renewal Application on the file had not been received by the Department on 27 March 2009 or certified as correct, so as to induce a belief that a certified renewal application of EPL 1024 for five years had been lodged within the time prescribed by s 113(2) of the Mining Act and obtain the recommendation of 6 units for five years rather than for only two years.

106. In the premises, the ETC was deceived by the representations and the recommendation of the ETC for the renewal of EPL 1024 for five years was procured by the representations that were false or misleading and Mr Capnerhurst's, Mr McDonald's and/or Mr New's failure to correct the representations.

107. Each of Newcrest and Mr Capnerhurst, Mr McDonald and Mr New in the course of their employment with the Department:

(a) made or were knowingly concerned in the making of the representations to the ETC which they knew were false or misleading; and/or

(b) made or were knowingly concerned in the making of the representations to the ETC with reckless disregard as to the truth or falsity of the representations.

108. On or about 8 October 2009 and following the recommendation of the ETC as aforesaid, Mr New, as the Minister's delegate, granted the Renewal.

109. As the recommendation of the ETC was procured by the representations that were false or misleading and Mr Capnerhurst's, Mr McDonald's and/or Mr New's failure to correct the representations, the Renewal is invalid and of no force or effect.

100 Section 374 of the Mining Act at the relevant time provided:

374 False or misleading information etc

A person must not:

(a) in or in connection with an application under this Act, or

(b) in purported compliance with any requirement under this Act,

furnish information that the person knows to be false or misleading in a material particular.

Maximum penalty: 100 penalty units.

101 GCR's case is based on documents and the drawing of inferences from these about the behaviour of Mr Capnerhurst, Mr McDonald, Mr New and consequently how the ETC approached its task. This ground requires understanding of the documents produced by the parties in some detail in relation to the 2004 renewal of EL 1024 as well as the renewal in 2009, the subject of this challenge.

2004 Renewal

102 Application for the renewal of EL 3856 and EPL 1024 for two years was made by letter from Newcrest dated 16 April 2004 (exhibit 1, p 124-127). A special circumstances submission for two years dated 15 April 2004 was enclosed with the application (exhibit 1, p 128-132). The period of renewal sought was recorded in the TAS system, in the title dealing enquiry as "sought expiry date: 20 May 2006" (exhibit 1, p 120).

103 A minute paper with the subject "special circumstance renewal for greater than 50% area for EPL 1024 by Newcrest" dated 28 July 2004 by Mineral Exploration Assessment Branch supported special circumstance renewal for two years (exhibit 1, p 106). A document titled "application for renewal" for EL 3856 was signed by Mr T Moore Titles, Western on 22 September 2004 ETC. It states that the Geological Survey Recommendation was to renew 43 units for 24 months as sought. A handwritten file note states "contacted Newcrest John Shelley who will formally accept 5 year renewal of EPL 1024" signed by Mr Leeks on 6 October 2004 (exhibit 1, p 104).

104 A document dated 6 October 2004 by Mr Hawke Assistant Chairman of the ETC states: "The Committee also decided that any renewal of EPL 1024 should be for a period of up to 60 months. The company is to be advised of this decision prior to any offer". A handwritten note by Mr Leeks dated 7 October 2004 states "contacted Newcrest - I was advised that the company would prefer 5 year renewal of EPL 1024. Written confirmation will be provided by Mr Shelley" (exhibit 1, p 103). Exhibit 3A is an unredacted version of this document. It shows that EL 3856 was among the exploration licences considered by the ETC.

105 An email from Mr Shelley of Newcrest to Mr Leeks from the Department dated 7 October 2004 states that following his telephone conversation with Mr Leeks, Newcrest requested renewal of EPL 1024 and EL 3856 for five years (exhibit 1, p 102).

106 A document titled "application for renewal" dated 19 October 2004 by Mr Moore Titles, Western (concerning EL 3856) states that the application for renewal was lodged with the ETC which recommended renewal for 24 months. The minute recommended renewal of EPL 1024 for 60 months. The holder of the licences in an attached letter dated 7 October 2004 requested that EL 3856 be renewed for 60 months. The matter was to be resubmitted to the ETC for consideration (exhibit E, document 83).

107 A document signed by Mr Galligan, chairman of the ETC, dated 3 November 2004 concerning EL 3856 states that the ETC reconsidered the application for renewal and recommended renewal for five years subject to Newcrest lodging an exploration programme covering the period of the proposed renewal (exhibit E, document 82).

108 A letter from the Department of Mr Moore for the Director-General to Mr Shelley of Newcrest dated 15 November 2004 advises that the ETC recommended renewal of EL 3856 for five years subject to lodgement by Newcrest of an exploration programme covering the period of proposed renewal (exhibit E, document 81).

109 A document titled "renewal of an exploration licence" recommends renewal of EL 3856 on 4 February 2005 noting the ETC's consideration dated 3 November 2004 (exhibit E, document 69).

110 On 1 December 2004 Mr New by delegation for the Minister renewed EPL 1024 for five years (exhibit 1, p 82).

111 An instrument of renewal for EL 3856 was signed by Mr New as delegate for the Minister dated 4 February 2005 for five years (exhibit E, document 68).

2009 Renewal

112 By letter dated 24 March 2009 Newcrest applied for a further renewal of EPL 1024 for a period of two years (exhibit 1 p 60-64). The application was accompanied by a "Special Circumstances" submission in support of the renewal for two years (exhibit 1 p 60, 65-73). The application was received on 27 March 2009 (exhibit 1 p 58, 59, 64). Documents in exhibit 1 are from the Titles Branch file. There are numerous references to check sheets, all of which preside on that file.

113 The Renewal of Exploration Licences Check Sheet (exhibit 1 p 46) relates to stage 2 of the renewal process. Step 1 is to enter the renewal dealing "into TAS and attach printout to file". This was done on 27 March 2009. The Title Dealing Enquiry (exhibit 1 p 55) shows the TAS printout was obtained at 9:47 am. That Title Dealing Enquiry showed the sought expiry date of the renewal to be two years namely until 20 May 2011. Step 2 was that the dealing was checked by Mr New on 27 March 2009. Step 3 was to check details against a TAS "full details" report which was signed on 27 March 2009 (exhibit 1 p 46).

114 Step 4, undertaken on 27 March was to "Forward a part paper to Geological Survey for report". The step refers to "Path: REN Geo Survey minute". Mr McDonald sent the application, supporting comments and a proposed programme of works to Geological Survey Branch (exhibit A vol 1 section B, tab 1 p 28 and exhibit 1 p 51). Geological Survey Branch sent a minute on 2 June 2009 advising the licence should be renewed with the period of renewal of five years (page 48) reported Mr Capnerhurst. The minute (at the top right hand corner) refers to "PAPERS: Part T74-1892" (p 48).

115 On 20 May 2009 Ms Bowyer of Newcrest sent an email to Mr Capnerhurst with two PDF attachments entitled "EPL1024 2009 page 1.pdf Renewal" and "EL3856 2009 page 1.pdf" (exhibit A vol 1 s A Tab 4). The email from Ms Bowyer to Mr Capnerhurst said:

Hi Kevin,

Please find attached the amended page 1's as requested.

I will endeavour to forward the amended work program by the end of the week.

116 Step 7 of stage 2 of the check sheet (exhibit 1 p 46-47) on the Titles Branch file be sent "to Drafting for identification". The identified path is "REN Drafting (Minerals)" (which was signed off on 4 May 2009). The conclusion of stage 2 is identified (exhibit 1 p 47) as:

Upon return of file from Drafting and receipt of report from Geological Survey proceed to Stage 3.

117 On 25 May 2009 Ms Bowyer sent Mr Capnerhurst an email with PDF attachment which was entitled "Renewal Submission - EL3856 2009 amended.pdf" (exhibit 1 vol 1 s B Tab 5). The email had as its subject "EL3856, EPL 1024 - Amended Renewal Submission". The text of the email was:

Dear Kevin,

Please find attached the amended Renewal Submission as requested. A brief statement and expenditure figures have been added for Year 3 to 5.

If you have any further queries please do not hesitate to contact me.

The renewal submission was for five years and was in relation to both EPL 1024 and EL 3856.

118 On 2 June 2009 Mr Capnerhurst of MEA completed the minute paper dated 2 June 2009 (exhibit 1 p 48). Step 4 in stage 2 refers to a REN Geo Survey minute. The minute paper stated:

Special Circumstances Renewal is recommended for sixty months as Newcrest has met the reporting requirements and greatly exceeded the expenditure commitment on this group of licences. Effective exploration continues to be carried out as they try and increase the resources of the Cadia Operations.

CONCLUSIONS

Special Circumstances Renewal policy criteria are satisfied

RECOMMENDATIONS

Special Circumstances Renewal is recommended. The period of renewal should be 60 months.

119 On 30 June 2009 Mr Wood, Principal Geologist in MEA, supported the recommendation by signing. He wrote on the minute paper:

Recommendation for special circumstances renewal of 6 units for 5 years is supported.

120 At the bottom of the minute paper is a reference to "Titles", in accordance with the end of the check sheet for stage 2 (exhibit 1 p 47). The minute paper was placed on the Titles Branch file (exhibit 1 p 48). The amended special circumstances submission was not.

121 Stage 3 of the check sheet (exhibit 1 p 50) requires in step 1 that a minute be prepared to the ETC via "Team leader". The document was prepared by Mr McDonald of Western Region Titles for the Exploration Titles Committee dated 3 July 2009 (exhibit 1 p 42). It states:

GEOLOGICAL SURVEY RECOMMENDATION

Special Circumstances renewal is recommended and supported. The term of the renewal should be five years.

122 In accordance with step 1 of stage 3 the minute to the ETC was sent via the Team leader Mr New. In the minute to the ETC Mr New (exhibit 1 p 43) wrote:

SCR (100%) for 5 years is supported.

He initialled and dated it 7 July 2009.

123 An agenda for the ETC meeting of 10 July 2009 was prepared by its secretary Ms Jedda Hoffman (exhibit A vol 1 s B tab 9 p 55). The agenda advised that the ETC meeting was to be held at 9:30am on 16 July. The ETC had received the Titles Branch file for EPL 1024 on 20 July 2009 (exhibit 1 p 1). The agenda attached the files of each of the matters to be the subject of the ETC meeting on 16 July and included as item 6 EPL 1024.

124 In a table accompanying the agenda (exhibit A vol 1 s B tab 9 p 56), in relation to item 6, EPL 1024, there were comments from various branches. In relation to "Geo Survey Coal Advice/Petroleum" the following comment appeared:

Renew:

· SCR Application supported

· 6 units, 24 months

There were no objections from the Environment Branch.

Titles Branch made this comment:

This licence is one of the Cadia Mine Group of ELs and SCR for 6 units for 60 months is supported.

125 On 16 July 2009 the ETC met (see minutes at exhibit 1 p 40). The meeting was chaired by Mr Lindsay Gilligan. There were 18 agenda items. Mr New represented Titles (Minerals). There were two representatives from Titles (Coal & Petroleum). There was a representative each from Coal Advice, Petroleum Geo Science, Environmental Sustainability and two representatives from Geological Survey Mr Wood, the Principal Geologist MEA and Mr Cameron Ricketts.

126 The minutes of the ETC of 16 July 2009 record in relation to item 6 EPL 1024:

The application for (special circumstances) renewal is for 6 units of 6 units currently held (Group 1 minerals). The committee recommends renewal of 6 units for a period of 5 years.

127 On 20 July 2009 the ETC sent the Titles Branch file back to Mr New.

128 On 8 October 2009 Mr New as Team Leader Western Region Mineral Titles granted the renewal under delegation from the Minister for a further five year term until 20 May 2014 (exhibit 1 p 6, 10). The stage 5 check sheet shows (exhibit 1 p 3, 4) further steps were taken between 8 October and 4 December 2009. The renewal was gazetted on 4 December 2009 and that date was recorded in accordance with step 7. On 7 December 2009 in accordance with step 9 the Titles Branch file was forwarded to records with instructions for the file to be resubmitted on the expiry date of the exploration licence, on 20 May 2014 (exhibit 1 p 1, 4).

GCR's submissions

129 GCR accepts the need to demonstrate the following, on the balance of probabilities:

(i) that the renewal application (after the old first page was removed and substituted with the new first page) on the Titles Branch file conveyed the representations pleaded at par 76 of the FAPOC, namely that the renewal application for five years had been received within time on 27 March 2009 and had been certified as correct at the time of receipt;

(ii) that each of the representations were false or misleading (that is, untrue or created an erroneous impression) and that Ms Bowyer and/or Mr Capnerhurst, Mr McDonald and Mr New were aware that the representations were false or misleading;

(iii) that the representations were made (with Mr Capnerhurst, Mr McDonald and Mr New being knowingly concerned in the making of them during the renewal process, as pleaded) to induce a belief that a certified renewal application for five years had been lodged within time on 27 March 2009 and obtain from the ETC the recommendation of renewal for five years rather than two years; and

(iv) that the ETC acted on the representations (and the failure to correct the representations) by recommending renewal for five years and Mr New implemented the recommendation of the ETC.

130 GCR relied on definitions in the Australian Legal Dictionary of "false instrument" which is "an instrument such as a document...on which false information is recorded. The information may be false because it purports to be made in a form or in terms in which it was not originally made, is made on the authority of another person who did not give or have authority..." and "false representation" is "a representation which is not, in fact, correct even if it is not false to the knowledge of the person making it." (TS 222). Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz [1992] FCA 71; (1997) 34 FCR 348 was also relied upon.

131 Mr Capnerhurst placed the new page 1 on and removed the old page 1 from the Titles Branch file. Mr Capnerhurst knew the representations made by him would go to the ETC. This is supported in the evidence as follows. The minute paper concerning special circumstance renewal for greater than 50 per cent area of EPL 1024 by Newcrest dated 2 June 2009 was prepared by Mr Capnerhurst (exhibit A, s C, tab 17, p 99). It includes the location, current operator, reports received, expenditure commitment for last term, actual expenditure (for five years), exploration conducted, the proposed program, conclusions and recommendations. Renewal is recommended for five years. The minute paper was endorsed by Mr Wood on 30 June 2009 and he recommended special circumstances renewal for five years. The Renewal of Exploration Licences Check Sheet for stage 3, step 1 requires the preparation of a minute to ETC (exhibit A, s C, tab 7, p 84). This minute was submitted by GCR to be the minute prepared by Mr Capnerhurst (TS 220). The Renewal of Exploration Licences Check Sheet for stage 3 step 3 (exhibit A, s C, tab 7, p 84) states "prepare letter to holder, request additional information which needs to be supplied within 21 DAYS from date of your letter...at conclusion of reply period refer application back to ETC," and at the end of step 3, "Refer to ETC and follow applicable steps in two above based on ETC's recommendations."

132 GCR submitted that the lack of any evidence to suggest that Mr Capnerhurst failed to correct the false impression leads to the conclusion that Mr Wood's support of the recommendation for a special circumstance renewal of six units for five years was procured by not only the representation of a valid five-year application but also Mr Capnerhurst's failure to correct that impression. When Mr Capnerhurst prepared the minute paper of 2 June 2009, he must have understood that his minute paper would go to the ETC and would be considered by the ETC (TS 220).

133 That representations made by Mr McDonald went to the ETC is supported in the evidence as follows. Mr McDonald received and checked the original application that was sent by Ms Bowyer on 24 March 2009. The exploration licence renewal application receipt check sheet (exhibit A, s C, tab 6, p 80) shows Mr McDonald's initials as having checked various aspects of the application including the first step in stage 2 which is to enter a REN dealing into TAS and attach a print out to the file (p 82). The title dealing enquiry in the TAS system shows the date received as 27 March 2009 9:47am (exhibit A, s C, tab 11 p 91 - 92). The last page of the amended Form 9 which is signed by Mr McDonald shows it as received at 9:30am 27 March 2009 (exhibit A, s C, tab 4, p 70).

134 Mr McDonald's letter of receipt of the renewal application (exhibit A, s C, tab 12, p 93), the receipt in respect to the fees (exhibit A, s C, tab 13, p 94), and the document titled Exploration (Prospecting) Licence No 1024 (Act 1973) it was sent to Geological Survey MEA (exhibit A, s C, tab 14, p 95). According to the other version of this document (exhibit A s B, tab 1, p 28) it was date stamped as received on 30 March 2009. This document states that "a copy of the application together with any supporting comments and the proposed program of work are attached."

135 Mr McDonald's recommendation for renewal dated 3 July 2009 (exhibit A, s C, tab 18, p 100) states "Special circumstances policy satisfied: YES" and the "Term sought: Five (5) years." The title dealing enquiry dated 15 October 2009 shows the expiry date sought as 20 May 2011 (exhibit A, s C, tab 8 p 87).

136 GCR submitted that based on this evidence Mr McDonald is likely to have entered the renewal application upon its receipt into the TAS as evidenced by the printout from that system, the renewal of exploration licences check sheet, and the last page of the Form 9. Mr McDonald must have well known that the application for renewal was for two years. The first page that came to replace the first page of the Form 9 was received on 20 May and Mr McDonald prepared his renewal recommendation on 3 July. Mr McDonald's renewal recommendation could only be based upon a five year renewal application. Mr McDonald could not have got the five year term from the TAS because at the time Mr McDonald prepared his memorandum the TAS recorded the application as a two year application. By confirming in his recommendation for renewal that the term sought was five years without any correction he was seeking to convey to the ETC that the renewal application had been lodged within time under s 113(2) and certified as correct, so that the committee, if it thought it appropriate, would recommend renewal for five years rather than two years.

137 That the false representations were made by Mr New to the ETC is supported in the evidence as follows. On Mr McDonald's recommendation for renewal dated 3 July 2009 (exhibit A, s C, tab 18, p 100) Mr New made a handwritten note on 7 July 2009 stating "SCR (100%) for 5 years is supported" (exhibit A p 101).

138 GCR therefore submitted that when Mr New endorsed his comments supporting a special circumstance renewal for five years, he must have known that the representations made by the Form 9 for a five year renewal period were false and misleading, because of his knowledge of the application at the time it was received (TS 235).

139 GCR submitted that Mr Capnerhurst, Mr McDonald and Mr New took this course because they wanted to ensure that the ETC thought there was a regular, duly completed application for renewal for five years which carries with it the inference that the five year application had been received by the Department within the time strictures of s 113(2) and certified as the form requires that its content and matters accompanying are accurate, so that the recommendation for five years would issue and the licence could be renewed accordingly. This is the only answer on the evidence absent any explanation from these gentlemen (TS 229 - 230). Jones v Dunkel was relied on in this regard (TS 216 - 219).

140 The Procedure Manual on renewals of exploration licences and associated matters (exhibit A, s D, tab 3) in step 7 states "if the ETC/Coal Advice recommends renewal prepare Instrument of Renewal documents and conditions." Step 9 states, "Upon receipt of the signed document and conditions... before you prepare a submission for renewal to the supervisor make sure... the Pt 5 approval is received, if a waiver under s 135 is required this has been actioned and approved and the application has been gazetted". Step 10 states "the team leader will usually renew the authority. Follow the post-renewal instructions per the Renewal check sheet."

141 Mr Lewis' evidence at [12] - [13] of his affidavit was relied on. GCR submitted that there was no serious challenge to Mr Lewis's evidence concerning the practice of the ETC and the delegate's renewal of an exploration licence when the ETC recommended approval. It must follow from that evidence unchallenged in substance that it was the known practice.

142 Mr New implemented the ETC's recommendation by granting the renewal on 8 October 2009 as usual departmental practice. That was the inevitable consequence of the ETC's recommendation and the evidence supports the finding that Mr New would not have renewed the licence without the ETC's recommendation. That he was not legally bound by the ETC's recommendations is not relevant.

143 As alleged in the FAPOC, Ms Bowyer sent the email dated 25 May 2009 attaching the amended first page to Mr Capnerhurst (and amended special circumstances submission) and was also engaged in making the fraudulent misrepresentations.

144 Motivation is not a required element of deceit. But the question why the complained of conduct was engaged in is simple to answer. As noted in GCR (EL 3856) with respect to the renewal of EL 3856 at [47], Mr Capnerhurst and Ms Bowyer must have recognised that a renewal application for five years was required, to obtain a renewal for five years rather than for two years. Mr McDonald and Mr New must have similarly recognised this, each clearly wanted the authority to achieve this objective. It was circumventing the strict time requirements of s 113(2). Absent anything else on the file it also left no trail that the first page of the renewal application had been replaced after the time expired.

145 Whether departmental officers had a view about the discretion under s 114 (whether mistaken or otherwise) is irrelevant although the substitution of the first page of the renewal application to circumvent the strict time requirements of s 113(2), powerfully suggests that the Department thought that a five year application was required to be lodged within time. Also there is no evidence to connect the events of 2004 with any actual knowledge of the participants in 2009.

2004 renewal process

146 The 2004 renewal process for EL 1024 (and EL 3856) does not inform Mr New's decision-making in the 2009 renewal process. The documents at p 102-104 exhibit 1 (expanded by additional documents in exhibit E) confirm that the decision to extend EL 3856 from two years as stated in the application to five years was returned to the ETC for a second time. This confirms GCR's case that a recommendation from the ETC was necessary before Mr New made his decision. If Mr New had thought that he did not need a five year term in the application form then why was the first page of the renewal application removed? A submission that Mr New acted independently and chose to depart from the ETC's recommendation is not supported by the documents.

147 What the documents (in EL 3856) establish is that:

(a) the applicant for the renewal requested a five year renewal in lieu of a two year renewal;

(b) that request was made prior to the delegate making his determination;

(c) as a consequence, the renewal application was referred back to the ETC with a request for renewal of five years;

(d) the ETC reconsidered the renewal application, now for a five year period, and recommended approval of the renewal for that period; and

(e) the delegate, following receipt of the ETC's recommendation, implemented that recommendation and granted the renewal of EL 3856 for a period of five years.

148 The documents relating to EL 3856 in 2004 may then be compared to what happened in respect of EPL 1024 in 2009. In the latter circumstance:

(a) apparently there was a conversation between Mr Capnerhurst (who was not the Minister's delegate, was not on the ETC or even entitled to receive an application for renewal of an exploration licence) and Ms Bowyer about changing the renewal application to a five year application, but there is no record of that conversation (unlike EL 3856);

(b) Ms Bowyer emailed Mr Capnerhurst the new first page of the Form 9 and a new submission. Unlike 2004, the emails were not on the Titles file;

(c) the first page of the original Form 9 stating the application to be for two years was substituted with the new first page stating the application was for five years;

(d) the application then proceeded to the ETC, with the ETC remaining ignorant that the application as lodged (two years) had been changed to an application for five years (and received out of time);

(e) the ETC, not knowing the true state of affairs, then made its recommendation. This is to be contrasted with 2004 when the application before the ETC was resubmitted in an open and transparent manner with records of each step taken.

149 The renewal must be quashed by an order of the Court relying on SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [11], [15], [17], [22], [28] and [29].

Minister's submissions

150 To succeed GCR has to show the essential four elements of deceit referred to by Viscount Maugham in Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205 at 211 referred to with approval in Commercial Banking Company of Sydney Limited v RH Brown & Co (1972) 126 CLR 337 by Gibbs CJ with McTiernan agreeing. These are that:

(i) Mr Capnerhurst, Mr McDonald and Mr New each made representations;

(ii) the making of the representations was made with knowledge of their falsity or their misleading nature;

(iii) the making of the representations was with the intention to induce others (departmental officers and the ETC) to act upon them; and

(iv) the acting upon the representations by the ETC and departmental officers.

151 If these elements are established to the requisite degree this will only establish that the ETC's recommendation was procured by fraud. The ETC is not the decision-maker. It is not asserted that it is. Mr New, one of those said to have engaged in the fraud, is the decision-maker. He had an independent discretion as to whether to grant the renewal or refuse the application and is not bound by the recommendations of the ETC.

152 GCR's case fails at the outset because the implied thesis is that the renewal application as originally made in March 2009 only sought a renewal for two years, and in May 2009 when the five year period was discussed between Mr Capnerhurst and Ms Bowyer it was too late to apply for a five year period because of s 113(2) of the Mining Act. The Department did not see the period of renewal sought in the application in any way restricted or inhibited the grant of the renewal for five years, as can be seen from the renewal process in 2004. The Court held such power existed in GCR (EL3856) at [57].

153 Further, the email from Ms Bowyer of 20 May 2009 refers to "amended page 1's". This suggests the application was to be amended in this way. The evidence does not establish that the alleged conspiring parties had the view that there was no power of retrospective amendment. Thus no dishonesty is established.

154 The Department's position on these matters it also consistent with the function of the Geological Survey Branch to provide advice as to the period for which a licence should be renewed despite being aware of the term sought in the application (see request for advice from Titles Branch in 2004 (exhibit 1 p 107) and in 2009 (exhibit 1 p 51).

155 The representations as pleaded in FAPOC par 76 are not established as having been made at all, let alone conveyed to other conspirators. Representation (a) states that the renewal application for five years had been received on or about 27 March 2009 and (b) that certified as being correct on that date. The representations are said to arise because of the position of the new first page of the renewal application on the Titles Branch file in the absence of the original first page.

156 No such representation was conveyed to Mr Capnerhurst. He never had the Titles Branch file so that he could not have removed the original first page and replaced it with the amended page. He could not have conveyed them to Mr McDonald, Mr New and the ETC. FAPOC par 84, 85 alleges that in preparing and signing the minute paper of 2 June 2009 Mr Capnerhurst was in some way conveying the representations. There is no reference at all to the period of renewal sought in the original application. The period sought was not critical to the Department.

157 There is no information on how the amended first page got from Mr Capnerhurst to replace the original page on the Titles Branch file. The only inference the Court can draw is that the application got to the Titles Branch file. No inference arises of a plot. A stronger inference is that as in 2004 Newcrest's agreement was sought for a five year period not the two applied for.

158 The allegation about Mr McDonald is based on his minute to the ETC dated 3 July 2009. The Minute refers to the term sought being five years. That is accurate as the email from Ms Bowyer of 20 May 2009 sought this term. Nothing in the minute represents that this was the term originally sought. There is no requirement that Mr McDonald refer to the fact that the original application made was for only two years.

159 The allegation made against Mr New appears to be that he deceived the ETC in two ways. Firstly it is said that he did so by writing on Mr McDonald's minute. He did so as Team Leader on 7 July 2009. He supported the special circumstances renewal (exhibit 1 p 43). It is to be noted that there is nothing in his comment which when taken with the minute of Mr McDonald conveys the representations.

160 Secondly it is alleged that Mr New deceived the ETC by attending the ETC meeting on 16 July 2009 without correcting the representations conveyed by the renewal application on the Titles Branch file, but as has been submitted the representations were not conveyed to anyone let alone any member of the ETC.

161 The second element which must be established is that the representations, if made, were made with the knowledge that they were false. This requires GCR to establish that each person knew they were making the alleged representations, and there is no such evidence. Mr Capnerhurst never had the Titles Branch file and it can be inferred that he did not know what happened with the new front page of the renewal application. The minute of 2 June 2009 does not convey a false impression. Even if made he cannot knowingly have made them. Nothing in the minute of 3 July 2009 of Mr McDonald conveys the making of the false representation.

162 Similarly, in the case of Mr New, there is no evidence, and it cannot be inferred, that he knew that his written support of Mr McDonald's 3 July 2009 minute would convey the alleged false representations to the ETC. There is no evidence that the circumstances suggested to Mr New that he was under an obligation to correct a false impression the ETC might have in relation to the renewal application, and that the failure to do so would of itself have conveyed the alleged false representations to the ETC.

163 The third element requires that GCR establish that each of Messrs Capnerhurst, McDonald, New made false representations knowing them to be false and misleading with the intention of inducing departmental officers and the ETC to act upon them. There is no evidence to support such a finding. As a matter of commonsense why would they each intend to induce the ETC to act upon these alleged false representations?

164 As is apparent, the allegation is dependent upon each of the Departmental officers have a particular (and mistaken) view as to the law. As GCR put it in par 17 in reply submissions they "must have recognised that a renewal application for 5 years was required to obtain a renewal for 5 years rather than only 2 years". However, the circumstances of the renewal of the licence in 2004 clearly establish that the Department and Mr New did not have this mistaken view of the law and considered that the period of renewal sought in an application form was not a matter of significance.

165 The fourth essential element is that the ETC did in fact act upon the false representations. There is no evidence that Mr Wood, the principal geologist of MEA, acted upon any false representations from Mr Capnerhurst in making the recommendation he wrote on the minute dated 2 June 2009.

166 There is no evidence that the ETC acted upon the alleged misrepresentations in making the recommendation it did on 16 July 2009 (exhibit 1 p 40). There is no available inference that it did. There is no evidence to suggest that the members of the ETC were under an impression contrary to the record on TAS and shown in the Title Dealing Enquiry that the period sought in the renewal application was for two years and was to expire in 20 May 2011. Indeed, the evidence from the renewal of the exploration licence in 2004 establishes that even if the ETC had known the "true position" at its meeting in 2009 that the original application submitted on time had only sought a two year renewal, it would not have considered itself constrained by this and would still have recommended renewal for the five year term in accordance with the recommendations in the minute and the other documents before it.

167 Further, the ETC was not the decision-maker. Mr New was as delegate of the Minister. He was no "rubberstamp". How then is Mr New's decision affected by fraud, particularly given he is said to be one of those who made the fraudulent misrepresentations? The fact that the delegate might ordinarily follow recommendation of the ETC does not mean that he is bound to do so.

168 The obvious inference from the 2004 file documents is that in 2004 neither Mr New, the ETC, nor anyone else in the Department considered the fact that the renewal application identified the period sought as only two years was any impediment to the renewal for a period of five years (a matter determined by the Court in the previous proceedings and now conceded by GCR to be the legally correct interpretation of the Act). The exploration licence was extended for five years in the ordinary course of considering the extension of other exploration licences.

169 Mr McDonald was the first to have the Titles Branch file in 2009. It must have come to him from storage/records after Newcrest's renewal application dated 24 March 2009. Mr McDonald held a position in "Western Region Titles" (exhibit 1 p 42, 49, 51). He acknowledged to Newcrest the receipt of the renewal application (exhibit 1 p 52). A comparison of his initials on p 1 of exhibit 1 with the stage 2 check list shows that he initialled steps 3, 4 and 5. On 6 April 2009 the file was sent to "Drafting Maitland" in accordance with step 7 of stage 2. The initial against "Drafting Maitland" is the same as the initials against steps 7 and 8 on stage 2 (exhibit 1 p 46 and 47). The dates next to steps 7 and 8 indicate that Drafting completed its work by 4 May 2009. The response from Drafting is dated 4 May 2009 (exhibit 1 p 49). Drafting sent the Titles Branch file to Mr New at Orange the same day (exhibit 1 p 1). Mr New remained the custodian of the Titles Branch file until he sent it to the ETC on 3 June 2009.

170 Mr Capnerhurst in MEA, being part of Geological Survey, never had the complete Titles Branch file. Mr Capnerhurst and MEA only had "part papers". When he received the email from Ms Bowyer on 20 May 2009 attaching the "amended page 1's" Mr Capnerhurst did not have the Titles Branch file. Mr Wood signed that minute paper also. In doing so he was clearly exercising his expertise as principal geologist.

171 The report from Geological Survey is to be received by those coordinating the renewal process and completing the check sheet. This is done in Titles Branch. The person co-ordinating this within Titles Branch was Mr McDonald.

172 The Titles Branch file showed members of the ETC that the title-dealing enquiry in TAS showed the "Sought Expiry Date" of the renewal application as 20 May 2011 (two years) (exhibit 1 p 55). The letter accompanying the application (exhibit 1 p 60) referring to the application being to renew the exploration licence "for a period of two years" (exhibit 1 p 60) and that immediately behind that letter (exhibit 1 p 61) was a copy of a renewal application seeking five years. The special circumstances submission (exhibit 1 p 65) seeking a renewal for a further two years to 30 May 2011 (exhibit 1 p 67, 73) was also on the file.

Newcrest's submissions

173 The Minister's submissions were adopted by Newcrest and I do not need to repeat these again where they overlap. The Court must take into account the gravity of matters alleged when weighing whether a party has proved its case: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J, s 140 Evidence Act 1995.

174 There is no clear or cogent or strict proof of an intention to deceive on the part of Ms Bowyer, Mr Capnerhurst, Mr McDonald or Mr New. Ms Bowyer sent the amended first page of the Form 9 application at the request of the Department. Her email refers to a recent conversation. The obvious inference to be drawn is that her purpose was to comply with the Department's request, not to deceive anyone. Any theory that Ms Bowyer was seeking to deceive officers within the Department also requires a finding that there was collusion with Mr Capnerhurst, of which there is no evidence. Such collusion is inherently unlikely.

175 The 2009 renewal process should be considered in light of what occurred in 2004 when Mr New also acted as the relevant delegate. As part of the process of renewal the Department asked Newcrest to accept a longer renewal than had been sought. From Ms Bowyer's perspective there was no reason to believe that the Department's request in 2009 was any different to the request made in 2004.

176 Newcrest's application was entered into the TAS as an application for renewal for two years. At all times since at least 2009, GCR has had access to the TAS through its agent Hetheringtons. That makes an intention to deceive very unlikely.

177 The representations identified in par 76 of the FAPOC include firstly that the new first page attached to the remaining part of the renewal application placed on the (Titles Branch) file conveyed the two specified representations to the departmental officers Messrs Capnerhurst, McDonald, New and the ETC. Ms Bowyer simply could not have placed the new first page on the Titles Branch file given that she was not an employee of the Department.

178 GCR relied on a procedure manual (exhibit A s D p 113) dated 14 August 2013 as supportive of its submissions about the application. These events occurred in 2009 and there is no evidence that the document existed or if it did, in that form and was available to someone like Ms Bowyer via a website.

179 GCR must prove there was a causative effect in that the representations made "tainted" the decision to renew or had some causative effect in doing so, Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201 at 205, GCR (EL3856) at [39]-[40].

180 In this case, the decision-maker was Mr New. The short answer is that there was no causal nexus between the falsity of the representations (assuming they were made and were false) and the decision to renew, because Mr New knew at all material times that the representations were false: FAPOC par 66; and see the definition of "representations" in par 76. Mr New was aware at all material times that the application had sought renewal for a term of two years.

181 GCR sought to avoid that problem by alleging that the ETC was the real decision-maker: FAPOC pars 75(c), 75(e), 86, 95, 103, 108. First, the evidence does not support a conclusion that the ETC, rather than Mr New, was the real decision-maker. The ETC has no legal or statutory constitution or standing. It is a bureaucratic tool, made up of changing representatives of the Department, to assist the renewal process. It would be an impermissible delegation on the part of Mr New if he were simply to implement the decisions of the ETC. The internal Departmental policy documents relied on by GCR at FAPOC par 86 do not alter that conclusion. To begin with, those documents do not say that the decision-maker must implement the decision of the ETC. Further, departmental policies cannot assume the effect of law, or be slavishly followed by a decision-maker: Minister for Immigration and Ethnic Affairs v Conygnham (1986) 68 ALR 441 at 454; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 98.

182 Secondly, the Court would not conclude that the ETC was unaware that the application lodged sought a renewal of two years, not five years. Mr New attended the ETC meeting: exhibit 1, p 40. There is no reason to conclude that he did not inform the ETC that the application sought a renewal of two years. Further, the ETC had the file for EPL 1024 before it. Consequently, the ETC had:

(a) Newcrest's letter of 24 March 2009, seeking a renewal "for a period of two years": exhibit 1, p 60.

(b) Mr McDonald's memorandum of 30 March 2009, recording that an application for renewal had been received "for a further term of 24 months": exhibit 1, p 51 (as regards the date, see exhibit A, p 28).

(c) the March 2009 special circumstances submission at exhibit 1, p 65-73 (also at exhibit A, pp 71-79), which said, on its first page, "Special circumstances renewal is sought ... for a further two years to 20th May 2011": at exhibit 1, p 67. The Conclusion stated "Newcrest considers that special circumstances exist for renewal ... for a further two years ...": at exhibit 1, p 73.

(d) the hard copy TAS report at exhibit 1, p 55 (also at exhibit A, p 91), which recorded the fact that the application was for a two year renewal, and the submission for GCR "so it's clearly entered as a two year application" (TS 28).

183 The additional documents do not alter the fundamental point that the events of 2004 are inconsistent with GCR's case that Mr New and his colleagues in the Mineral Titles Section simply implemented the decisions of the ETC. In 2004, if the decision of the ETC had simply been implemented, then EL 3856 would have been renewed for two years, not five years. But it was not simply implemented, because Mr Leeks (Manager, Minerals Titles, Mr New's superior and himself a delegate (exhibit D p 34)) decided following his discussion with Newcrest that EL 3856 should be renewed for five years, not the two years that the ETC had recommended. The fact that he remitted the matter to the ETC for further consideration does not detract from the force of the proposition that he was evidently turning his own mind to the decision and not acting as the rubber stamp of the ETC.

184 Separately, the additional documents reinforce the conclusion that the members of the ETC were well aware that a renewal of five years could be granted notwithstanding that the application had sought only two years.

Fraudulent misrepresentation not proven

185 As identified in Gold and Copper Resources Pty Limited v The Hon. Chris Hartcher MP, Minister for Resources and Energy, Special Minister of State, Minister for the Central Coast [2013] NSWLEC 166 (Gold and Copper (No 1)) at [22] there are four elements of this ground, firstly, various representations were made by conduct, words or silence, secondly, these were made with knowledge they were false or misleading, thirdly, the representations were made with the intention to induce others to act on them, and fourthly those persons acted on the representations. These elements are reflected in the matters identified by the Minister above at par 150 referring to Bradford as necessary to be proved and the case as submitted by GCR in their written submissions at par 129.

186 The onus of proof GCR bears is the civil standard on the balance of probabilities, to be considered in light of Briginshaw given the seriousness of the allegations as discussed by Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, (5th ed 2013, Thomson Reuters) at 314. In Briginshaw Dixon J identified that reasonable satisfaction is required and explained what that meant at 361-362. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 the High Court confirmed that this does not give rise to a third standard of proof accepting that Briginshaw suggests that attention to the strength of evidence in attaining the civil standard focuses on the probative value of such evidence, see also NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (No 2) [2011] NSWLEC 98 at [262]. Section 140 of the Evidence Act in subsection (2) directs attention to matters relevant to consideration under Briginshaw, namely the cause of action, the subject-matter of the proceedings and the gravity of the matters alleged. The need for particularity in pleading fraud is discussed in Minister v Tweed Byron at 205.

187 As to allegations of fraud in judicial review proceedings, Harry Woolf, Jeffrey Jowell, Andrew Le Sueur, Catherine Connelly and Ivan Hare, De Smith's Judicial Review, (7th ed 2013, Sweet & Maxwell) at 290-291 states that [administrative] power is exercised fraudulently if its repository intends an improper purpose. Fraud requires that the perpetrators intend a particular outcome. GCR submitted that motivation is not an element of deceit. Whether motivation is or is not an element, intention to deceive is (which would usually be explained by a motive of some description). There is no definition in s 374 or elsewhere in the Mining Act of false or misleading information. Aronson and Groves at 311 considers fraud by a decision-maker in the context of bad faith and improper purpose. If proven these vitiate the proper exercise of public power by that decision-maker. Here the decision-maker Mr New is alleged to have acted fraudulently in concert with others. There appear to be few judicial review cases alleging fraud by a decision-maker. Another category discussed by Aronson and Groves at 321 is fraud against a decision-maker. SZDFE is one such case. The facts of this matter are very different to that case which involved a finding of fraud by a third party in relation to the processes before an administrative tribunal. Here the allegations relate to other departmental officers as well as the decision-maker and an employee of Newcrest.

188 The representations which were alleged to be fraudulently made are set out in par 76 of the FAPOC to the effect that the new first page attached to the renewal application on or after 20 May 2009 conveyed the representation that the application for renewal for five years had been received by the Department within the time prescribed by s 113(2) on or about 27 March 2009. Secondly, that the application had been certified as correct at the time of receipt by the Department on or about 27 March 2009. Those representations are alleged to be made by three officers of the Department including the decision-maker Mr New and one employee of Newcrest.

189 While much hearing time was spent closely reviewing the Minister's files and GCR's submissions summarised above in detail which identify steps taken by officers such as Mr Capnerhurst as reflected in the documentary record, there cannot be much debate about the steps that were taken and indeed the documentary record largely speaks for itself. This record is contained in the discovered documents from the Department, being the Titles Branch file and other branch files (and from Newcrest to a limited extent) identified above in the documentary record section. The Titles Branch file identifies specified steps required to be taken as outlined in the check sheets identified in that file and referred to in the parties' submissions. Five stages of the renewal process are identified.

190 There is some dispute about the implications of the documentary record before the Court. As identified in par 131 one disagreement relates to a factual assertion by GCR of the inference to be drawn as to the fate of the original first page of the application sent by Ms Bowyer of Newcrest on 27 March 2009 to the Department. GCR pleaded in par 70 and 83 of the FAPOC that this was removed by Mr Capnerhurst from the renewal application on the Titles Branch file and destroyed. The page was produced by Newcrest and was not discovered in the Department's files. The evidence does not establish how the amended page 1 found its way onto the Titles Branch file or why the original page 1 is not on the Titles Branch file. Its fate is unknown. The inference could arise that it was inadvertently lost or deliberately destroyed within the Department.

191 A further dispute related to whether the Titles Branch file as a whole went to the Geological Survey Branch. The Minister submitted that part of the file was held by Mr Capnerhurst. The documentary record suggests that only a part file went to Geological Survey. Stage 2 step 4 in the Titles Branch file refers to a part paper being sent to Geological Survey on 27 March 2009 (exhibit 1 p 46). A minute by Mr Capnerhurst in Geological Survey is headed part T74 1892 (exhibit 1 p 48).

192 Linked to these two issues is whether Mr Capnerhurst had access to the Titles Branch file and was the person who replaced the first page of the renewal application on that file. GCR asserted that he must have done so because he received the amended page 1 and the five year special circumstances submission from Ms Bowyer, said he would attach these to the renewal documents in an email to Ms Bowyer on 27 May 2009 and worked in the Orange office of the Department where the Titles Branch file was located albeit in a different section. GCR asserted that the index of that file was not always signed when accessed, as identified in its detailed submissions in reply. While that submission can be accepted, no inference arises one way or the other from the Titles Branch file or elsewhere of how the amended page 1 came to be there and the original page 1 removed and replaced. Ultimately this is not material in any event.

193 No evidence is adduced by the Minister or Newcrest from the officers or the employee the subject of these allegations so that unless explicit in the records tendered in evidence, the alleged fraudulent misrepresentations must be implied by inference from the documents. GCR submitted that an inference arose based on Jones v Dunkel that in the absence of evidence from any of the relevant departmental officers that their evidence would not have assisted the Minister the case as conceived by GCR must be upheld. As the Minister submitted the principle in Jones v Dunkel arises only where an adverse inference is already open on the evidence. Only in those circumstances will a failure to call a witness to contradict or explain evidence give rise to the inference referred to in Jones v Dunkel. Whether those inferences arise will be considered below (if necessary to do so).

194 There are several reasons why these allegations cannot succeed and I consider these now.

Mr New had discretion to determine renewal

195 Central to GCR's case is the submission that the fraudulent misrepresentations made were intended to mislead the ETC. ETC's role as referred to in FAPOC par 104 and 106 was to consider the application for five years at its 16 July 2009 meeting. At FAPOC par 104(b) the ETC is alleged to presume the regularity of the application for the renewal of EPL 1024 for five years. An important hurdle for GCR's case, identified by the Respondents, is that Mr New the Minister's delegate is the final decision-maker and he was aware, according to GCR's case, at all relevant times of the changes in the application. This is articulated in the FAPOC at par 64-66 and 99 which state Mr New (and Mr McDonald) were aware that the original first page of the renewal application and the original special circumstances submission sought renewal for two years at all relevant times. Mr New is identified as being one of the officers involved in the making of misleading representations to the ETC, a committee within the Department.

196 As the Respondents submitted, the ETC is not the final decision-maker and has no statutory role under the Mining Act. Newcrest's submissions about the nature of the ETC in par 181 are accepted. Unless GCR can prove that Mr New had no independent discretion separate from the ETC's recommendations the case must fail. GCR relied on the evidence of Mr Lewis to prove this aspect of its case. Mr Lewis attests that it was the practice within the Department that the recommendations of the ETC be implemented by the decision-maker. His evidence considered events at a general level, was not comprehensive in that his attendance at ETC meetings was sporadic, and he had never acted as the Minister's delegate. Mr Lewis' evidence does not demonstrate that Mr New believed he had no discretion to be exercised separately from the ETC. His evidence confirms a practice of matters being considered by the ETC before the decision of a delegate such as Mr New. The administrative guidelines to which he refers, Policy Renewal of Exploration Licences for Minerals and Procedure Manual for renewals of exploration licences, do not provide that Mr New as a delegate of the Minister had no discretion separate from implementing the recommendation of the ETC. As Newcrest submitted the fettering of discretion in this way is unlawful. In Minister for Immigration and Ethnic Affairs v Conygnham (1986) 68 ALR 441 at 454 Sheppard J states that there was no ground for elevating the guidelines to the status of law. In Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 98 Hill J citing Gummow J in Khan v Minister for Immigration, Local Government and Ethnic Affairs (Federal Court, 11 December 1987, unreported) states:

There can be no challenge to a decision merely because a decision was made in accordance with a policy. To ensure consistency of administrative decision-making, it will often be appropriate for a policy to be issued containing guidelines. The policy of the Minister, to which I have referred, is one such example. However, a decision-maker must take care to ensure that he does not slavishly follow a policy and disregard the particular circumstances of a case. As Gummow J said in Khan's case ((supra) (pp 11-12)):

" ... what was required of the decision-maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... "

197 GCR submitted above at par 142 that Mr New implemented the ETC's recommendation by granting the renewal as usual departmental practice and that the evidence supports the finding that Mr New would not have renewed the licence without the ETC's recommendation. This submission cannot be correct in light of the findings and authorities cited by me above.

198 The allegations in pars 101, 102 and 103 in relation to Mr New cannot be inferred. On this basis alone this ground fails.

No representations made

199 A further impediment to GCR's claim is, as the Respondents submitted, the representations identified in par 76 of the FAPOC are not conveyed to anyone looking at the Titles Branch file. The file must be looked at as a whole and in light of all records of the application kept, which includes the Department's electronic TAS. The immediately preceding page on the Titles Branch file was the covering letter from Newcrest stating that the company wished to renew for two years (exhibit 1 p 60). Immediately after the renewal application is the special circumstances submission referring to a two year renewal period to 20 May 2011 (exhibit 1 p 67). Consequently, no representations as alleged in par 76 were conveyed by the documents on the Titles Branch file when viewed collectively. Further, the TAS showed the application as being for two years at all times. Mr Harris' uncontested evidence is that a wide range of people within and outside the Department had access to that system including GCR's agent Mr Hetherington. GCR's submission (above at par 130) that the amended page with the rest of the renewal application was a false instrument is not established. The findings in Dela Cruz relied on GCR have no application in the circumstances of this case.

200 As the Minister submitted, when Mr Capnerhurst prepared the minute dated 2 June 2009 there was no reference to the period of renewal sought by Newcrest so that the alleged representations were not made. The minute dated 3 July 2009 prepared by Mr McDonald which stated that a five year renewal was sought reflects what was then understood of Newcrest's application given the communication with Ms Bowyer in May 2009. GCR asserted a representation that a term of five years was sought as part of the renewal application and that the renewal application had been lodged within time under s 113(2) and certified as correct. These two matters are not necessarily connected, GCR's case assumed that they are. Neither Mr Capnerhurst's minute nor Mr McDonald's minute convey the representations referred to in par 76 of the FAPOC (to the extent there were any).

201 When the content of the two minutes prepared by Mr Capnerhurst and Mr McDonald and signed by Mr New are considered there is no evidence that Mr New with their assistance was making false representations to the ETC. Consequently, there was also no inference about a false impression which he, Mr Capnerhurst or McDonald failed to correct contrary to the allegation in par 91 (Mr Capnerhurst), par 96 and 97 (Mr McDonald), par 105 and 106 (Mr New) of the FAPOC.

No intention to deceive assuming representations were made

202 In reply submissions at par 17 GCR articulated why the fraudulent misrepresentations were made, namely that by inference all of the conspirators believed that a renewal application for a term of five years was required for the grant of a renewal of five years.

203 Important context is provided by understanding that the Minister has power to renew an exploration licence for up to five years regardless of what period is requested in an application to renew in a Form 9, as I held in GCR (EL 3856) at [57]-[60]. While that judgment delivered in 2013 is after the 2009 renewal date in this case, it was a finding which supports the Minister's case and related to a renewal application made in March 2009, granted in 2011, a similar date to the renewal application in this matter. I infer that it is highly likely to have been the understanding of the Minister's department in 2009 when this renewal application was considered that renewals could be granted for up to five years regardless of what was stated in the application. The events in 2004 also confirm this view was held within the Department as I consider below.

204 GCR relied on my finding at [47] in GCR (EL 3856) where I stated that departmental officers considered that a written application reflecting the period of five years intended to be recommended to the Minister for approval was required as they requested Newcrest to amend the application made in February 2009 to seek five years. The focus of my consideration there was different to this matter. No issue was there raised about the legal consequences of a change of the first page of an application for renewal and my attention was not focussed on that circumstance, unlike this matter where it is the focus. My meaning would have been clearer if I had put in the word apparently before considered. That finding does not assist GCR in this matter.

What does the 2004 renewal process show?

205 Both the Respondents and GCR relied on the events of 2004 to support their respective cases.

206 The Minister relied on the 2004 renewal process because it shows there was a change in the renewal period from two to five years after the original application was made by Newcrest in relation to EPL 1024 and another application for EL 3856. No fresh application or amendment of the original application was made to confirm that change for both applications. A Newcrest employee was contacted and a departmental officer asked if Newcrest would agree to a five year term for EPL 1024. Newcrest's verbal agreement was noted in handwriting on the Departmental file by Mr Leeks (exhibit 1 p 104, see par 103). That behaviour suggests the Department's view was that it was permissible under the Mining Act to renew an exploration licence for a period of up to five years regardless of the period specified in the original application contrary to GCR's submission. The wording of the minute dated 6 October 2004 recording the ETC's decision to renew EPL 1024 for five years with the company to be advised of this decision prior to any offer does not suggest a belief by the ETC (or anyone else in the Department) that the period of renewal granted up to five years had to be specifically requested by Newcrest in an application Form 9.

207 The process for EL 3856 was a little different according to the additional documents tendered by GCR as that renewal application went to the ETC twice. GCR relied on the events of 2004 in relation to EL 3856 to demonstrate the centrality of the role of the ETC in assessing exploration licence renewal applications because the change in the period for which the application for EL 3856 was sought from two years to five years as subsequently discussed with a Newcrest employee after the first occasion was returned to the ETC for a second consideration. Both inferences can arise from the 2004 renewal process, are not mutually exclusive and do not support GCR's case.

208 GCR must establish that there was an intention to deceive by the alleged conspirators. Contrary to GCR's submission that the officers' view about how the discretion under s 114 operated is irrelevant. I consider their (inferred) view is highly relevant to my consideration of their behaviour. GCR submitted that the substitution of page 1 of the renewal application was to circumvent the strict time requirements of s 113(2), but my finding above that a period of renewal of up to five years is lawful and that this was the departmental view as informed by events in 2004 suggests to the contrary.

209 Applications received as part of the well defined statutory process for renewal applications in the Mining Act should be preserved intact and loss or destruction of the original page 1 is unfortunate and not reflective of best administrative practice within the Department. Having said that, had a departmental officer simply attached the new first page of the renewal application to the existing two year application with a staple rather than replacing the old first page, there would be even less basis for the conspiracy to make the fraudulent misrepresentations alleged in GCR's case. This would have avoided the potentially misleading appearance of the original application on the Titles Branch file as being certified by Ms Bowyer in March 2009 for a five year renewal period when she did not so certify. An equally plausible reason for the behaviour of departmental officers in requesting an amended page 1 and removing or losing the original page 1 is that it was a clumsy attempt to confirm that Newcrest agreed to a renewal for five years rather than the two years requested in the original page 1 of the renewal application before the matter was referred to the ETC in accordance with usual departmental practice.

210 GCR has not established there was an intention to deceive by any of the alleged conspirators.

ETC did not act on representations if made

211 The FAPOC at par 104(a) and (b) allege in relation to the ETC that on 16 July 2009 the attendees considered the application for renewal of EPL 1024 for five years including the new first page which conveyed the representations and presumed the regularity of the application for five years. There is no evidence for either of these assertions beyond the circumstance that the Titles Branch file was before the ETC. There were indications on that file the renewal application originally sought two years. The minutes of the ETC for the meeting state in relation to EPL 1024 that the committee recommends renewal of six units for five years. That recommendation was intended for Mr New in this case.

No fraudulent representation by Ms Bowyer

212 For reasons already identified above the claim against Ms Bowyer cannot succeed. I will deal briefly with the specific allegations made in the FAPOC. That the fraudulent misrepresentation arises by inference is the basis of the matters alleged in the FAPOC in relation to Ms Bowyer/Newcrest at par 68, 69, 72, 75, 77, 78, 80 and 81. The case articulated in relation to Ms Bowyer is particularly weak and I consider the submissions of Newcrest above at par 174 are correct, namely that the obvious inference that arises from her behaviour is that she intended to comply with the Department's request, not to deceive anyone. There is no basis for the inference in par 69 of the FAPOC that by sending to Mr Capnerhurst an email on 20 May 2009 Newcrest intended that the old first page of the renewal application be removed or substituted by the new first page. That inference is said to arise from the email from Ms Bowyer dated 20 May 2009. That email said the amended page 1 was attached. No inference of any sort arises from that email.

213 Whether Ms Bowyer was aware of the content of the Policy on Renewal of Exploration Licences for minerals (exhibit A section D tab 2) printed off for this case on 14 August 2013 expressed to be effective from 1 November 2004, is not material for the reasons I have given above in par 196. This policy does not confirm that Mr New's discretion was fettered by what the ETC did. Knowledge of Ms Bowyer, if it existed, that matters were referred to the ETC within the Department is a neutral factor.

214 Paragraphs 71 and 72 of the FAPOC refer to the new special circumstances submission and allege that Newcrest intended that the old submission be removed and replaced by the new submission so that the latter appeared to have been lodged with the Department on 24 March 2009. The email from Ms Bowyer to Mr Capnerhurst dated 25 May 2009 states that the amended renewal submission is attached as requested with new figures for years 3 to 5 added. There can be no inference based on this evidence of an intention attributed to Ms Bowyer as reflected in par 72.

215 A number of matters are said to arise by inference in relation to Ms Bowyer in par 75. How Ms Bowyer's knowledge as an employee of Newcrest as to the internal working of the Department can be inferred simply from her position as Australian Tenement Manager for Newcrest is not established by that assertion. There is no evidence of collusion arising explicitly or implicitly between Ms Bowyer and any of the named departmental officers. No inference based on Jones v Dunkel can arise in relation to the absence of direct evidence from Ms Bowyer because an adverse inference is not already available on the evidence.

216 The FAPOC are drafted and GCR's case was presented on the basis all of the named persons were involved in the making of fraudulent misrepresentations. I have found that the case against Mr New and Ms Bowyer is not established and to a large extent also in relation to Mr Capnerhurst and Mr McDonald. I will briefly consider the allegations in the FAPOC in relation to each.

217 If follows from my finding above that no representations as defined in par 76 of the FAPOC were made by Mr Capnerhurst contrary to what is alleged in the FAPOC at 82.

218 The allegation in par 83 that Mr Capnerhurst removed the old first page and attached the new first page is not established by inference, held above at par 192. The allegation in par 84 of the FAPOC that the new first page was lodged out of time and was not the subject of Ms Bowyer's certification has no legal consequence as I concluded in relation to ground 1. Nothing therefore flows from this allegation as to Mr Capnerhurst's knowledge. No representations as alleged in par 85 were made by him. The documents cited in particulars in par 86 do not establish the matters known to Mr Capnerhurst over and beyond an understanding he is likely to have that the matter would go to the ETC. The basis of the allegation in par 87, 88 and 90 (in relation to Mr Wood) is not established for the reasons stated above. There was no need for Mr Capnerhurst to correct misrepresentations he knew to be false or misleading as alleged in par 91. There is no basis for the application of the principle in Jones v Dunkel to give rise to any adverse conclusion in the absence of direct evidence from Mr Capnerhurst.

No fraudulent misrepresentation by Mr McDonald

219 The FAPOC par 92 alleges knowledge of Mr McDonald that the representations were false and misleading arising by inference from his actions as reflected on the file. He prepared a minute paper to the ETC on or about 2 June 2009. His actions contributed to documents sent to the ETC stating that the term sought by Newcrest was five years (par 93). That Mr McDonald knew he was making fraudulent misrepresentations through his actions is alleged in the FAPOC par 94 and 95 with such knowledge to be inferred from the Department's policy and procedure.

220 My findings in relation to several issues above mean that Mr McDonald also did not engage in fraudulent misrepresentation. There is no basis for the principle in Jones v Dunkel to give rise to any adverse conclusion in the absence of direct evidence of Mr McDonald.

221 GCR has not established its case as set out in par 129. GCR is unsuccessful on this ground also. This summons should be dismissed.

Operation of privative clause

222 Section 137 of the Mining Act as at June 2009 provided:

137 Limitation of challenges to decisions with respect to authorities

(1) The cancellation of an authority, or the grant or refusal of an application for an authority or the renewal or approval of the transfer of an authority, cannot be challenged in any legal proceedings commenced later than 3 months after the date on which notice of the cancellation, grant or refusal is published in the Gazette.

(2) A notice lodged under section 130 cannot be challenged in any legal proceedings commenced later than one month after the date on which notice of its lodgment is published in the Gazette.

(3) This section has effect despite any other Act, but does not apply so as to affect:

(a) any appeal from proceedings commenced within the period of 3 months referred to in subsection (1) or, in the case of proceedings relating to a notice referred to in subsection (2), the month referred to in subsection (2), or

(b) the operation of section 128.

223 It is not disputed that the proceedings were commenced later than three months after the date on which notice of the renewal of EPL 1024 was published in the government gazette on 4 December 2009. The Class 8 summons was filed in the Court on 25 August 2012. The Respondents relied on s 137 to argue these proceedings are statute-barred.

224 GCR submitted that s 137 was not a bar to the proceedings relying on Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [55]. Section 137 should be read down so as to preserve the supervisory jurisdiction to review an administrative decision for jurisdictional error. The finding to that effect in a similar case Brown v Randwick City Council [2011] NSWLEC 172; (2011) 183 LGERA 382 at [39] should apply in this matter also. It is not readily apparent that the finding in Brown does apply, as the Respondents submitted. Given my conclusion that the proceedings should be dismissed it is unnecessary that I resolve whether the privative clause in s 137 of the Mining Act applies to prevent this challenge.

Orders

225 The Court makes the following orders:

(1) The Applicant's Class 8 summons is dismissed.

(2) Costs are reserved.

(3) Exhibits to be returned.

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Amendments

03 September 2014 - "Second Respondent" omitted from counsels' appearances
Amended paragraphs: Coversheet

Decision last updated: 03 September 2014