Land and Environment Court New South Wales

• Medium Neutral Citation: Gold and Copper Resources Pty Limited v Newcrest Mining Limited [2014] NSWLEC 148
• Hearing dates: 15/09/2014
• Decision date: 17 September 2014
• Jurisdiction: Class 8
• Before: Biscoe J

Decision

Orders as per [54]

• Catchwords: JUDICIAL REVIEW - challenge to validity of respondent Minister's renewal of a mining exploration licence - motion for dismissal of proceeding on basis (inter alia) that issue estoppel or Anshun estoppel bars sole ground of judicial review stated in summons - applicant concedes - whether proceeding should be dismissed whilst applicant's notice to respondent Minister pursuant to UCPR r 59.9 to provide reasons remains unanswered - whether power under r 59.9 to make an order to provide reasons where the only ground of review stated in summons is barred by issue estoppel or Anshun estoppel - if power, whether discretion should be exercised.
• Legislation Cited: Administrative Decisions (Judicial Review) Act 1975 (Cth) s 13; Government Information (Public Service Access) Act 2009 ss 4, 75; Mining Act 1992 ss 114, 137(1); Land and Environment Court Rules 2006 r 4.3; Uniform Civil Procedure Rules 2005 Part 59; Land and Environment Court Practice Note - Class 4 Proceedings (30 April 2007) [14]; Land and Environment Court Practice Note - Class 4 Proceedings (13 January 2014); Supreme Court Practice Note SC CL 3 [23]
• Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, (2009) 239 CLR 175; Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154, (2009) 75 NSWLR 169; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, (2006) 226 CLR 256; Blair v Curran [1981] HCA 45, (1939) 62 CLR 464; Brewer v Brewer [1953] HCA 19, (1953) 88 CLR 1; Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 2) [2010] NSWLEC 1, (2010) 172 LGERA 25; Cassegrain v Gerard Cassegrain and Co Pty Limited [2013] NSWCA 454, (2013) 305 ALR 648; Charlton v Moore (No 2) [2009] NSWLEC 47; Egri v DRG Australia Ltd (1988) 19 NSWLR 600; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55, (2012) 87 ALJR 98; Gold And Copper Resources Pty Ltd v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30; Gold and Copper Resources v Minister for Resources and Energy [2013] NSWLEC 66; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231; Haines v Australian Broadcasting Corporation [1995] NSWSC 136, (1995) 43 NSWLR 404; Hooper v Port Stephens Council [2010] NSWLEC 41; Hoystead v Commissioner of Taxation [1926] AC 155; Island Maritime Limited v Filipowski [2006] HCA 30, (2006) 226 CLR 328; Jackson v Goldsmith [1950] HCA 22, (1950) 81 CLR 446; Kuligowski v Metrobus [2004] HCA 34, (2004) 220 CLR 363; Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543; Malesev v Strati [2014] NSWLEC 91; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, (1981) 147 CLR 589; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Public Service Board of New South Wales v Osmond [1986] HCA 7, (1986) 159 CLR 656; Ramsay v Pigram [1968] HCA 34, (1968) 118 CLR 271; Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113; Reichel v Magrath (1889) 14 App Cas 665; Rippon v Chilcotin Pty Ltd [2001] NSWCA 142, (2001) 53 NSWLR 198; Rogers v R [1994] HCA 42, (1994) 181 CLR 251; Shellharbour City Council v Minister for Planning [2011] NSWLEC 59; Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342; Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9, (2014) 306 ALR 547; Thiess v Collector of Customs [2014] HCA 12, (2014) 306 ALR 594; Vincent Land Pty Ltd v Hyder Consulting Pty Ltd [2012] NSWLEC 105; Walton v Gardiner [1993] HCA 77, (1993) 177 CLR 378
• Texts Cited: Spencer Bower and KR Handley, Spencer Bower and Handley: Res Judicata (LexisNexis, 4th ed, 2009)
• Category: Interlocutory applications
• Parties: Gold and Copper Resources Pty Limited (Applicant); Newcrest Mining Limited (First Respondent); Minister for Resources and Energy (Second Respondent)
• Representation: COUNSEL: T Alexis SC (Applicant); I M Jackman SC and S A Lawrance (First Respondent); T S Hale SC and L Waterson (Second Respondent); SOLICITORS: Hones La Hood (Applicant); Allens (First Respondent); Crown Solicitor's Office (Second Respondent)
• File Number(s): 80455/14

Judgment

1 There are two motions before the Court in this judicial review proceeding, in the Court's Class 8 mining jurisdiction, challenging the validity of a renewal of a mining exploration licence. The applicant in the substantive proceeding is Gold and Copper Resources Pty Limited. The respondents are Newcrest Mining Limited (Newcrest) and the Minister for Resources and Energy (Minister). The two motions are:

(a) A motion by Newcrest, supported by the Minister, to summarily dismiss (alternatively stay) the proceeding on the basis of issue estoppel, Anshun estoppel or abuse of process. In the alternative, security for costs is sought.

(b) A motion by the applicant, filed in Court at the hearing of Newcrest's motion on 15 September 2014, seeking an order pursuant to r 59.9 of the Uniform Civil Procedure Rules 2005 (UCPR) that the Minister provide the other parties with a copy of the renewal decision and a statement of reasons for the decision as required by the applicant's notice served under r 59.9 on 26 June 2014 simultaneously with service of the summons.

2 On the eve of the hearing of Newcrest's motion, the applicant conceded that [29]-[32] of its summons, which specify its sole ground of judicial review, should be struck out on the basis of issue estoppel and Anshun estoppel and that it should pay the respondents' costs of Newcrest's notice of motion. The applicant submits, however, that the proceeding ought not be dismissed while the applicant's notice pursuant to UCPR r 59.9 remains unanswered.

3 The substantive proceeding concerns a decision by the Minister, dated 17 January 2014, to renew an exploration licence, EL 3856, granted under the Mining Act 1992. In its summons the applicant seeks a declaration that renewal is void. The applicant relies on a single ground of review: that there was no valid application for renewal because, after receipt by the Minister's Department, the front page was replaced. That single ground is a point of law that has already been determined against the applicant once in a proceeding concerning another exploration licence: Gold and Copper Resources Pty Limited v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30. Further, the point was not litigated in an earlier proceeding concerning EL 3856 where, at the applicant's invitation, the Court made orders inconsistent with the point now being taken: Gold and Copper Resources v Minister for Resources and Energy [2013] NSWLEC 66.

Events in 2009

4 The Newcrest group holds two exploration licences issued under the Mining Act covering ground surrounding the Cadia gold mine, south-west of Orange. One of those exploration licences is EL 3856, which is held by Newcrest. The other exploration licence is EPL 1024, which is held by a related company, Newcrest Operations Limited.

5 Exploration licences need to be renewed from time to time because they are granted for a specified period. EL 3856 and EPL 1024 were both due to expire on 20 May 2009.

6 On or about 24 March 2009, Newcrest applied to renew EL 3856 and EPL 1024. Each application form sought a renewal of two years.

7 On 20 May 2009, Newcrest sent an email to the Minister's Department. The email had two attachments. One was the first page of a Form 9 for EL 3856, which sought a renewal of five years. The other was the first page of a Form 9 for EPL 1024, which also sought a renewal of five years.

8 After receiving the 20 May 2009 email, an officer of the Department removed the old first page of the Form 9 for each of EL 3856 and EPL 1024 and replaced it with the new first page attached to Newcrest's email of 20 May 2009: Gold And Copper Resources Pty Ltd v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30 at [20]-[21], [40].

9 Subsequently the Minister renewed EPL 1024 on 8 October 2009 and renewed EL 3856 on 14 March 2011.

The first proceeding - Gold and Copper Resources v Minister for Resources and Energy [2013] NSWLEC 66: challenge to EL 3856

10 On 19 August 2011, the applicant commenced a proceeding against the Minister and Newcrest in this Court challenging the 14 March 2011 decision to renew EL 3856. This proceeding resulted in a decision of Pain J delivered on 17 May 2013: Gold and Copper Resources v Minister for Resources and Energy [2013] NSWLEC 66. This first proceeding was heard by Pain J in December 2012. The applicant's case at the hearing was set out in Amended Points of Claim filed 23 February 2012. The applicant's pleaded case was predicated on the proposition that, at the time the Minister's delegate made his decision of 14 March 2011, there was in existence a valid application for renewal for a term of two years (but not five years).

11 On the final day of the hearing, the applicant sought to amend its claim by filing a Further Amended Points of Claim. It sought to introduce a new ground of challenge, namely, that the removal and destruction of the old first page of the renewal application form and its replacement with a new first page had the consequence that there was no valid application for renewal before the Minister's delegate at the time the renewal decision was made. That application to amend was opposed by both respondents. Her Honour rejected the application to amend, essentially because it had been brought too late.

12 The applicant succeeded on two of its four grounds of review. The orders made by Pain J include the following:

1 An order in the nature of certiorari that the decision by the First Respondent to renew Exploration Licence 3856 made on 14 March 2011 be quashed.

2 The Second Respondent's application for a renewal of Exploration Licence 3856 dated 24 March 2009 be remitted to the First Respondent to be determined according to law.

5. A declaration that the renewal application lodged by the Second Respondent in respect of Exploration Licence No 3856 on or around 24 March 2009 is yet to be "finally determined" (within the meaning of that phrase in section 117(1) of the Mining Act 1992 (NSW)) by the First Respondent.

13 Those orders were predicated on the validity (and continuing validity) of the renewal application that had been lodged on or around 24 March 2009. If that renewal application had been rendered invalid by the removal of its first page on or around 20 May 2009, then there would have been nothing to remit (cf order 2) and there would have been no application that was yet to be finally determined (cf order 5). There was no appeal from Pain J's orders of 17 May 2013.

The second proceeding - Gold And Copper Resources Pty Ltd v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30: challenge to EPL 1024

14 On 24 August 2012, the applicant commenced a proceeding against the Minister and Newcrest Operations Limited in this Court challenging the 8 October 2009 decision to renew EPL 1024. This second proceeding resulted in a decision of Pain J delivered on 1 April 2014 Gold And Copper Resources Pty Ltd v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30.

15 The applicant did not repeat the mistake it had made in the first proceeding. The applicant ensured that the "no valid application" point was squarely raised in its pleading. The "no valid application" point was considered by Pain J and was rejected: see [40]-[49]. Essentially, Pain J held that, as a matter of construction of the Mining Act, physical destruction of the form on which an application was made did not bring to an end the legal existence of the application itself: at [44]-[45], [47]. Pain J dismissed the applicant's summons.

16 On 26 June 2014, the applicant filed a notice of appeal from Pain J's orders. The sole ground of appeal is that her Honour erred in rejecting the "no valid application" point. That appeal has been fixed for hearing on 24 February 2015.

The Minister's determination of the remitted decision

17 Meanwhile, the Minister had been considering Newcrest's renewal application for EL 3856 that had been remitted to him by the orders made by Pain J on 17 May 2013 in the first proceeding: see [12] above. On 17 January 2014, the Minister determined that renewal application. The decision of the Minister was to renew EL 3856 until 20 May 2014.

The current proceeding

18 The current proceeding was commenced on 26 June 2014. In the current proceeding the applicant challenges the validity of the Minister's decision of 17 January 2014 to renew EL 3856. The sole ground of challenge in the current proceeding is the "no valid application" point. That is precisely the same point that the applicant sought to raise, unsuccessfully, on the final day of the hearing before Pain J in the first proceeding: see [10]-[11] above. It is also precisely the same point that was determined against the applicant in the second proceeding: see [14]-[15] above.

Legal principles: issue estoppel and Anshun estoppel

19 Since the applicant concedes that issue estoppel and Anshun estoppel bar its sole ground of challenge identified at [29]-[32] of the summons, the legal principles can be shortly stated, substantially in accordance with the respondents' uncontested submissions.

20 A judicial determination creates an issue estoppel if it decides an issue of fact or law or mixed fact and law in a cause of action as an essential step in its reasoning, and consequently the contrary cannot be asserted in a proceeding between the same parties (or their privies): Blair v Curran [1981] HCA 45, (1939) 62 CLR 464 at 531-532; Ramsay v Pigram [1968] HCA 34, (1968) 118 CLR 271 at 276, approved in Kuligowski v Metrobus [2004] HCA 34, (2004) 220 CLR 363 at [40]; Jackson v Goldsmith [1950] HCA 22, (1950) 81 CLR 446 at 460; Egri v DRG Australia Ltd (1988) 19 NSWLR 600 at 610. The root of the principles of issue estoppel is the incontrovertibility of earlier decisions: Island Maritime Limited v Filipowski [2006] HCA 30, (2006) 226 CLR 328 at [56]. The principle of issue estoppel extends to judicial review proceedings: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342. An issue estoppel operates between parties who were in controversy in the earlier proceeding (and their privies). If an issue estoppel exists between two parties, then it is not defeated by the fact that another person was also a party to the earlier proceeding (and is not a party to the later proceeding), nor by the fact that another person is also a party to the later proceedings (but was not a party to the earlier proceedings): Taylor v Ansett Transport Industries Ltd at 358, 365. Issue estoppel extends to all matters that were fundamental to the earlier judicial determination, whether or not those matters were contested in the earlier proceeding: Rogers v R [1994] HCA 42, (1994) 181 CLR 251 at 283 per McHugh J. Consequently, an issue estoppel may arise from an admission or concession made by a party in an earlier proceeding: Hoystead v Commissioner of Taxation [1926] AC 155 at 170; Rogers v R; Brewer v Brewer [1953] HCA 19, (1953) 88 CLR 1 at 15. The general rule, to which there may be exceptions, is that an issue estoppel cannot be waived: Cassegrain v Gerard Cassegrain and Co Pty Limited [2013] NSWCA 454, (2013) 305 ALR 648 at [94]-[96].

21 In the current proceeding, the applicant's challenge is barred by issue estoppel for two reasons. First, there is an issue estoppel arising from the first proceeding in which the applicant challenged the renewal of EL 3856, Gold and Copper Resources v Minister for Resources and Energy [2013] NSWLEC 66: see [10]-[13] above. The issue estoppel arises because it was essential to the decision of the Court in the first proceeding that the renewal application lodged by the Newcrest remained a valid application as at the date of the Minister's decision on 14 March 2011: see orders 2 and 5 made by the Court on 17 May 2013 ([12] above). Newcrest is able to enforce that issue estoppel in its own right because it was a party to the first proceeding.

22 Secondly, there is an issue estoppel arising from the second proceeding in which the applicant challenged the renewal of EPL 1024, Gold And Copper Resources Pty Ltd v Hon Chris Hartcher MP, Minister for Resources and Energy, Special Minister (No 2) [2014] NSWLEC 30: see [14]-[16] above. The issue estoppel arises because Pain J determined the "no valid application" point against the applicant in the second proceeding. Although the exploration licence in question was a different licence, the point was a point of law (statutory construction of the Mining Act) and the point of law sought to be raised in the current proceeding is identical. The fact that an appeal is pending from the second decision does not prevent an issue estoppel arising: Taylor v Ansett Transport Industries Ltd at 354. Newcrest cannot enforce the issue estoppel itself because it was not a party to the earlier proceeding (in which the respondent was Newcrest Operations Limited). However, the Minister was a party to the earlier proceeding and the Minister relies upon the second issue estoppel. Given the issue estoppel in favour of the Minister, the applicant's challenge in the current proceeding cannot succeed.

23 Anshun estoppel involves an extension of the doctrine of res judicata. It operates not only in respect of points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment in the earlier proceeding, but in respect of every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, (1981) 147 CLR 589 at 598. There will be an estoppel if the matter relied upon in the later proceeding was so relevant to the subject matter of the earlier proceeding that it would have been unreasonable not to rely on it: Anshun at 602; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [81]. An Anshun estoppel also arises where an omission to plead a claim or defence would contribute to the existence of conflicting judgments: Habib at [83].

24 Here, there is an Anshun estoppel arising from the first proceeding in which the applicant challenged the renewal of EL 3856, Gold and Copper Resources v Minister for Resources and Energy [2013] NSWLEC 66: see [10]-[13] above. If the applicant wished to claim that the consequence of an officer of the Department removing the front page of the renewal application form and replacing it with another page was that there ceased to be a valid application for the renewal of EL 3856 in 2009, then that was a point that properly belonged in the first proceeding and it was unreasonable for the applicant, exercising due diligence, not to raise it there. In that first proceeding, the applicant unsuccessfully attempted to amend its claim on the final day of the hearing: see [11] above. A further reason for the existence of an Anshun estoppel in the current proceeding is that there would otherwise be a risk of conflicting judgments. The orders of the Court in the first proceeding (made on 17 May 2013) assume that the 24 March 2009 renewal application remained a valid application as at 17 May 2013 and had not been extinguished by the removal of its first page in 2009. If the Court had acceded to the applicant's claim in the current proceeding, that the removal of the first page destroyed the renewal application or rendered it invalid, then a judgment to that effect would be inconsistent with the earlier judgment.

25 That conclusion cannot be altered by the fact that the applicant sought, unsuccessfully, to raise the point in the earlier proceeding: Spencer Bower and KR Handley, Spencer Bower and Handley: Res Judicata (LexisNexis, 4th ed, 2009) at [8.36] citing Khan v Mian [1948] AIR (PC) 78, which appears to be the only case that has squarely decided the point. That conclusion derives some support from Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, (2009) 239 CLR 175, where a majority of the Court expressed the view that Anshun estoppel might operate where a plaintiff had been refused leave to amend: at [33] per French CJ, at [86]-[87] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. The authors of Res Judicata disagreed with the contrary obiter view of Powell JA, in dissent, in Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 619. The divergence of views between the Privy Council in Khan and Powell JA was noted in Sahin v National Australia Bank [2012] VSCA 317 at [95] note 70 per Ferguson AJA.

26 It may also be an abuse of process for a party who has had an issue conclusively determined against it in an earlier case to seek to re-litigate that issue in a later case: Reichel v Magrath (1889) 14 App Cas 665, Walton v Gardiner [1993] HCA 77, (1993) 177 CLR 378 at 393; Rippon v Chilcotin Pty Ltd [2001] NSWCA 142, (2001) 53 NSWLR 198. Newcrest refers to the elements sufficient to constitute an abuse of process stated by Hunt CJ at CL in Haines v Australian Broadcasting Corporation [1995] NSWSC 136, (1995) 43 NSWLR 404 at 414 and quoted with approval by Handley JA in Rippon at 204 [31], are: (a) the party propounding the issue in the later case must have lost the issue in the earlier case; (b) the issue must have been necessarily determined in the earlier proceeding, and be of importance to the final result; (c) the issue must have been properly argued in the earlier case; and (d) normally, the decision disposing of the issue in the earlier case must have been a final decision. Hunt CJ added that all the circumstances of the determination in the earlier case may be considered; for instance, circumstances in which, notwithstanding the absence of an appeal, it is clear that the earlier decision overlooked some binding authority, or that it has caused the unsuccessful party a manifest injustice. See also Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, (2006) 226 CLR 256 at [15].

27 My conclusion, which the applicant concedes, is that the ground of review stated in the summons is barred by an issue estoppel or an Anshun estoppel.

Applicant's motion for UCPR r 59.9(4) order

28 Whilst conceding that the issue estoppel and Anshun estoppel points defeat the sole ground of judicial review identified in its summons, the applicant submits that the proceeding ought not to be dismissed whilst the notice pursuant to UCPR r 59.9 that it served on the Minister on 26 June 2014 - simultaneously with the summons - remains unanswered. Keeping the current proceeding alive is critical to pressing any new ground of challenge that the response to that notice might disclose. That is because the validity of the decision to renew EL 3856 cannot be challenged in any legal proceeding commenced later than three months after the date on which notice of the grant was published in the Gazette, and that period has expired: s 137(1) Mining Act. Thus, if the current proceeding is dismissed, a new ground could not be pressed in a new proceeding because the latter would be time barred.

29 Consistently with its submission, at the hearing of Newcrest's motion on 15 September 2014 the applicant filed, and I heard, a notice of motion seeking orders that the Minister provide to the other parties by 29 September 2014 a copy of the decision to grant the renewal of EL 3856 on 17 February 2014 and a statement of the reasons for the decision prepared in accordance with UCPR r 59.9(3), and that the proceeding be stood over for further directions on 10 October 2014.

30 The respondents submit that:

(a) The Court has no power to make a r 59.9(4) order unless, a proceeding for judicial review has been properly commenced.

(b) This proceeding has not been properly commenced and is an abuse of process because under r 59.4(c) the summons had to state the grounds on which relief was sought and the only ground that it stated was barred by an issue estoppel or an Anshun estoppel.

31 This issue of power turns on the construction of r 59.9. UCPR Part 59 relevantly provides:

59.3 Commencement and parties

(1) Judicial review proceedings are to be commenced by summons.

...

59.4 Content of summons

The summons must state:

(a) the orders sought, and

(b) if there is a decision in respect of which relief is sought:

(i) the identity of the decision-maker, and

(ii) the terms of the decision to be reviewed, and

(iii) whether relief is sought in respect of the whole or part only of the decision and, if part only, which part, and

(c) with specificity, the grounds on which the relief is sought.

59.5 Service of summons

Within 5 days of filing the summons, or such other time as the court may direct, the plaintiff must serve the summons on each defendant.

59.6 Response to summons

Within 21 days, or such other time as the court may direct, after being served with the summons, each defendant must file and serve a response stating whether the defendant opposes the relief sought and, if so, on what grounds.

...

59.9 Special procedure where public authority is defendant

(1) This rule applies to proceedings for judicial review in which relief is sought in relation to a decision of a public authority.

(2) The plaintiff may, within 21 days of commencing proceedings against a public authority or within such other time as the court may direct, serve on the public authority a notice requiring the public authority to provide to the plaintiff:

(a) a copy of the decision, and

(b) a statement of reasons for the decision.

(3) A statement of reasons for the decision must:

(a) set out findings on material questions of fact, and

(b) refer to the evidence or other material on which those findings were based, and

(c) explain why the decision was made.

(4) If:

(a) the public authority does not comply with a notice under this rule within 14 days of service, or

(b) the plaintiff has not served a notice within the time prescribed by subrule (2),

the plaintiff may apply to the court for an order that the public authority provide the plaintiff with a copy of the decision and a statement of reasons for the decision.

32 The relatively new Part 59 of the UCPR commenced in March 2013. The r 59.9 special procedure in judicial review proceedings for service of a statement of reasons for the decision has its antecedents in similar (but not identical) provisions in three earlier court practice notes or rules of court. First, the Land and Environment Court Practice Note - Class 4 Proceedings dated 30 April 2007 at [14], which was replaced by a new Class 4 Practice Note in January 2014 with no provision for the service of reasons (because such a provision was unnecessary given the prior introduction of Part 59 of the UCPR). Secondly, similar provisions in the Supreme Court Practice Note SC CL 3 at [23] governing proceedings in the Administrative Law List of the Common Law Division, which commenced in July 2007. Thirdly, r 4.3 of the Land and Environment Court Rules 2006, which applies to Class 4 judicial review proceedings but at the moment (anomalously) not to Class 8 judicial review proceedings such as the current proceeding. These provisions do not go as far as s 13 of the Administrative Decisions (Judicial Review) Act 1975 (Cth), which creates a right to obtain a statement of reasons regarding reviewable decisions, irrespective of whether or not an application for judicial review has been made.

33 The Supreme Court Practice Note SC CL 3 provides at [23]:

Where proceedings have been taken to challenge the decision of a public body or public official, because of the difficulties which at times arise in ascertaining the decision making process and the reasons for the decision, the Court may, at a directions hearing direct the body or person whose decision has been challenged to furnish to the plaintiff within a specified time, a statement in writing setting out the reasons for the decision including findings on material questions of fact referring to the evidence or other material on which those findings were based, the body's or person's understanding of the applicable law and the reasoning processes leading to the decision (compare Administrative Decisions Tribunal Act 1997 (NSW), s49). Otherwise in appropriate cases, orders may be made for such matters to be ascertained by way of particulars, discovery or interrogatories. Subject to this, orders for discovery or interrogatories will only be made in exceptional cases, and such orders will then generally be confined to particular issues. Evidence in matters in the List is normally by affidavit.

34 Rule 4.3 of the Land and Environment Court Rules 2006 provides:

4.3 Proceedings for the review of public authority's decision

In any proceedings in which a public authority's decision is challenged or called into question, the Court may make one or more of the following orders:

(a) an order directing the public authority to make available to any other party any document that records matters relevant to the decision,

(b) an order directing the public authority to furnish to any other party a written statement setting out the public authority's reasons for the decision, being a statement that includes:

(i) the public authority's findings on any material questions of fact, and

(ii) the evidence on which any such findings were based, and

(iii) the public authority's understanding of the applicable law, and

(iv) the reasoning process that led to the decision,

(c) an order for particulars, discovery or interrogatories.

35 These judicial mechanisms for the furnishing of a statement of reasons superimpose the apparently very limited common law obligations of an administrative decision-maker to furnish reasons: Public Service Board of New South Wales v Osmond [1986] HCA 7, (1986) 159 CLR 656. They operate even where no record of a statement of reasons exists, as is typically the case with administrative decisions within this Court's jurisdiction. Consequently, they are of far greater utility than the provisions for access to government information in the Government Information (Public Service Access) Act 2009 because that Act defines "government information" to mean information held in a record by a government agency and the agency is under no obligation to create such a record in response to an access application: ss 4, 75.

36 The beneficial nature, importance and utility of such judicial mechanisms have been emphasised by the Court of Appeal and in a number of decisions of the Land and Environment Court. They are often the only way of revealing whether the decision was made lawfully or unlawfully. In Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154, (2009) 75 NSWLR 169 Spigelman CJ held at [96]-[101] (McColl JA and Handley AJA agreeing) that judicial mechanisms such as that in the Supreme Court Practice Note SC CL 3 at [23] can and should be employed to establish an administrative decision-maker's purpose and whether it was an improper, collateral purpose:

[96] Justice Lloyd was of the opinion that there was no evidence to support the improper, collateral purpose. I agree. The Briefing Note is not such evidence. The author of the Note canvasses the effect that the formation of the opinion may have upon the extant Land and Environment Court proceedings. However, this analysis is that of the author of the Note.

[97] Mr Hutley submitted that the Briefing Note was evidence of the Minister's purpose because it was signed and thereby adopted by him. However, signature does not necessarily indicate "adoption" of the contents. All the Note itself suggests is that the Minister "note" its contents. The contents of a departmental memorandum of this character are not usually evidence of what was in the Minister's mind, nor do they establish the Minister's purpose.

[98] Establishing the purpose of a decision-maker has always generated difficulty in applications for judicial review of administrative decisions where the decision-maker does not identify his or her reasoning process. That is why it was necessary to enact s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 25D of the Acts Interpretation Act 1901 (Cth). There are no equivalent provisions in this State.

[99] However, there are judicial mechanisms for establishing the purpose of the actual decision-maker. In the present case, interrogatories could have been directed to the Minister with a view to eliciting the relevant evidence. Other powers of the court could be called in aid in order to establish the relevant facts.

[100] I refer, for example, to Practice Note SC CL 3 which applies to proceedings in the Administrative Law List in the Supreme Court and which states:

"23. Where proceedings have been taken to challenge the decision of a public body or public official, because of the difficulties which at times arise in ascertaining the decision making process and the reasons for the decision, the Court may, at a directions hearing, direct the body or person whose decision has been challenged to furnish to the plaintiff within a specified time, a statement in writing setting out the reasons for the decision including findings on material questions of fact referring to the evidence or other material on which those findings were based, the body's or person's understanding of the applicable law and the reasoning processes leading to the decision (compare Administrative Decisions Tribunal Act 1997 (NSW), s 49). Otherwise in appropriate cases, orders may be made for such matters to be ascertained by way of particulars, discovery or interrogatories. Subject to this, orders for discovery or interrogatories will only be made in exceptional cases, and such orders will then generally be confined to particular issues. Evidence in matters in the List is normally by affidavit."

[101] It is not, in my opinion, permissible to infer a Minister's purpose from a Briefing Note of the character under consideration. The Minister, who had had a long course of dealing with this issue, did not, by accepting the ultimate recommendation, adopt the whole of the reasoning in the document. It was necessary to establish his purpose in some other way. That was not done.

37 Austral was followed in this respect in Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 2) [2010] NSWLEC 1, (2010) 172 LGERA 25 at [70] per Preston CJ of LEC.

38 In Charlton v Moore (No 2) [2009] NSWLEC 47 at [16] I wrote:

The beneficial nature of such provisions is manifest. In Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124 at 130 Gummow J said of s 13 of the Administrative Decisions (Judicial Review) Act:

Section 13 of the ADJR Act is a remedial provision in that the duty for which it provides stands in high contrast to the apparently very limited obligations at common law of a decision-maker to furnish reasons ... Brennan J recently observed (Miller v TCN Channel Nine Pty Ltd (1986) 60 ALJR 698 at 720-721) that the ADJR Act removes what would otherwise have been procedural obstacles to discovery of the grounds on which discretions have been exercised. The policy which s 13 implements is (as Lockhart J explained in Dalton v Deputy Commissioner of Taxation (NSW) (1985) 7 FCR 382 at 391-392) to provide any citizen having sufficient interest in the matter with material to assist him in determining whether there is any error in the process of reasoning of the decision-maker and, accordingly, to chart his future course of action ... Section 13 is not to be construed grudgingly or with a penchant for technicality.

39 In Shellharbour City Council v Minister for Planning [2011] NSWLEC 59 I dealt with the issue of whether a statement of reasons should be ordered prior to the filing of points of claim. After citing Austral, I said at [13]:

Both the Land and Environment Court and the Supreme Court Practice Notes require relevant documents to be made available and a statement of reasons to be provided to the applicant. The purposes of these requirements include: to enable the existence of a legal error made by the decision-maker to be more readily perceived than otherwise might be the case and, to engender confidence in the community that the decision-maker has gone about their task lawfully: see the authorities reviewed in Charlton. Therefore, relevant documents and reasons may inform an applicant's case. This is consistent with [14] of the Class 4 Proceedings Practice Note. In the present case, there seems little point in requiring the applicant, who seeks document and reasons, to plead before seeing them, for it then may only have to amend.

40 Similar observations were made in Hooper v Port Stephens Council [2010] NSWLEC 41 at [10] per Sheahan J, and in Vincent Land Pty Ltd v Hyder Consulting Pty Ltd [2012] NSWLEC 105 at [43] per Pepper J. In Hooper Sheahan J struck out the points of claim, made an order for reasons pursuant to r 4.3(b) of the Land and Environment Court Rules and required amended points of claims to be filed thereafter. His Honour took into account scanty information provided by the applicant to support his suspicions that the Council had failed to take account of matters he claimed gave rise to invalidity: at [5], [13], [29]-[31], [36]. In Vincent Pepper J ordered a statement of reasons after concluding that there was no risk of opening the floodgates to an unmeritorious application because the applicant was represented by competent lawyers, was directly affected by the decision, the summons set out the relief claimed in detail and provided more than the barest of bases for challenging the decision: at [56]. Her Honour said at [43]:

There can be no doubt as to the beneficial nature and intent behind r 4.3. A statement of reasons is significant in assisting individuals to assess whether or not an administrative decision can or should be challenged by the institution of judicial review proceedings. The rule also promotes transparency and accountability at all levels of government decision-making, which in turn enhances the legitimacy of those decisions.

41 In Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113 at [23] I said:

...it would be a Catch 22 to say (although it is not said in this case) that disclosure of reasons should not be ordered unless unlawfulness of reasoning is pleaded when such pleading is impossible unless the reasons are ordered to be disclosed.

I added at [24]:

I do not see a significant risk of the floodgates being opened to unmeritorious applications for statements of reasons in judicial review cases where applicants invoke statutory open standing provisions. Historically, there has been little more than a trickle of such cases in this court, less than ten per annum, and experience suggests that the sanction of an adverse costs order is meaningful to the applicants in many of them.

42 In relation to UCPR r 59.9, in Malesev v Strati [2014] NSWLEC 91 at [14] Craig J said:

Fundamental to the judicial review of a decision made by a public authority is knowing, with precision, the terms of that decision and the reasons for it. Often, the statute under which the decision of a public authority is made does not require the provision of reasons for that decision. The determination by a consent authority of an application for development consent under Pt 4 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) is a case in point. In the absence of statutory provisions requiring a statement of reasons, there is no general law duty on the part of a public authority to provide reasons for its decisions (Public Service Board of NSW v Osmond [1986] HCA 7; 159 CLR 656). Rule 59.9 provides a mechanism for that general principle to be overridden once judicial review proceedings have been commenced.

43 The respondents submit that the Court's power to make an order under r 59.9(4) is conditional upon the proceedings being properly commenced by the filing of a summons which states a ground of review that is not manifestly hopeless - otherwise there are no "proceedings for judicial review" within the meaning of r 59.9(1). They seek to gain some traction for that construction from r 59.4(c), which requires the summons to state with specificity the grounds on which the relief is sought.

44 Rule 59.4(c) is novel in its requirement that the ground of relief are to be stated in the summons. The object of rr 59.4 and 59.6 is to make a summons and a response in judicial review cases more informative than has historically been the case, and to make pleadings generally unnecessary.

45 On the respondents' construction, if an applicant can get its foot in the door by stating in the summons a ground which is not manifestly hopeless or an abuse of process, then the Court is empowered to make an order under r 59.9(4). But, on the respondents' construction, if the applicant does not or cannot do this, then the Court has no power to make such an order.

46 In the present case, the summons does state a ground that is not of itself manifestly hopeless; however, it is barred by an issue estoppel. The issue estoppel arising from the first proceeding does not satisfy the general criteria for an abuse of process listed above at [26] because the point was not determined in the first proceeding; rather, it was the subject of an application for leave to amend which was refused because it was made too late. Insofar as the issue estoppel arises from the second proceeding, it appears to satisfy those general criteria but all the circumstances have to be taken into account. Here, there is the additional circumstance that the correctness of the decision to reject this ground in the second proceeding is the subject of a pending appeal. Having regard to that circumstance, particularly if the appeal were to succeed, it may perhaps be inappropriate to characterise the statement of that ground in the summons as an abuse of process.

47 The issue is one of construction of r 59.9. The task of statutory construction begins and ends with consideration of the statutory text. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and insofar as, it assists in fixing the meaning of the statutory text. Objective discernment of statutory purpose is integral to contextual construction: Thiess v Collector of Customs [2014] HCA 12, (2014) 306 ALR 594 at [22]-[23] citing Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55, (2012) 87 ALJR 98 at [39]. Ordinarily, the legal meaning attributed to statutory text, read in context, will correspond with the grammatical meaning. But not always: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [78]. Context sometimes favours an ungrammatical legal meaning, which sometimes involves reading statutory text as containing implicit words which are always words of explanation. "The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative intention. Context more often reveals statutory text to be capable of a range of potential meanings...none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies": Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9, (2014) 306 ALR 547 at [65]-[66] per Gageler and Keane JJ.

48 In my opinion, the Court's power to make a r 59.9(4) order is not limited in the way that the respondents submit. That provision should be given a purposive, beneficial construction which is consistent with the text and context. The purpose and effect of r 59.9(4) is to empower the Court to enable an applicant in judicial review proceedings to ascertain whether the terms of the decision and the reasons for the decision disclose unlawfulness in the decision-making process and to promote transparency and accountability in government decision-making. However, r 59.9 is not a freestanding provision. Rather, r 59.9 applies only to "proceedings for judicial review in which relief is sought in relation to a decision of a public authority": r 59.9(1). In the present case the summons does seek such relief. Proceedings for judicial review must be commenced by summons: r 59.3(1). Rule 59.9 does not say that it applies only where the summons commencing the proceedings contains all the matters specified in r 59.4. If, in form, the summons does not contain all the matters required by r 59.4 - for example, if it does not specify a ground on which the relief is sought - it does not follow, in my view, that there are no "proceedings for judicial review in which relief is sought in relation to the decision of a public authority" within the meaning of r 59.9(1). There are still such proceedings, as referred to in r 59.9(1), even if the content of the summons is deficient in terms of r 59.4. If that were not so, the consequence of non-compliance with r 59.4 would often be dire because there is often a statutory limitation period for commencing judicial review proceedings and, where there is not, r 59.10 specifies a limitation period of three months. Non-compliance with a form requirement of r 59.4 might not be focused on until the limitation period had expired.

49 Whether the discretion to exercise the r 59.9(4) power should be exercised and, if so, in what way is a different issue. When no ground, or only a manifestly hopeless ground, is stated in the summons or otherwise identified and there are no other significant circumstances, it is unlikely that the Court would exercise its discretion at all. However, where disclosure of a copy of the decision and the reasons is the only way, or an important way, in which it can be ascertained the decision-maker has obeyed the legislature's express command that a precondition to the exercise of the power must be satisfied, that may be a more promising case for the exercise of the discretion. It is of such importance as to warrant (depending on the circumstances) favourable consideration by the Court of an exercise of the discretion under r 59.9(4). That is the situation in the present case in relation to the jurisdictional fact in s 114(6) of the Mining Act, which provides:

The area of land over which an exploration licence may be renewed is not to exceed half the area over which the licence was in force when the application for renewal was made unless the decision-maker is satisfied that special circumstances exist that justify renewal of the licence over a larger area.

50 Section 114(6) prescribes a jurisdictional fact of the subjective variety: Caroona at [59]. The Minister has to have the mental state of satisfaction that special circumstances exist before he can renew an exploration licence over a larger area than half the previous area. Section 114(6) applies in the present case because the number of units over which the licence was renewed equalled the number of units over which the licence was in force when the application for the renewal was made. Disclosure of the Minister's reasons is an important mechanism, and may be the only mechanism, for ascertaining whether the Minister had the prescribed state of satisfaction. Assuming, as I have held, that the Court has power to make the order sought, the respondents do not submit that the discretion to make the order should not be exercised. In the circumstances, I propose to exercise the discretion to make the order.

COSTS

51 The respondents seek their costs of the proceedings. Additionally, Newcrest - but not the Minister - seeks an order that the respondents' costs may be assessed forthwith (rather than at the conclusion of the proceeding) because the applicant's evidence shows (as I accept) that the applicant did not grapple with the estoppel issues until last week, and Newcrest submits that the applicant should have done so earlier. The applicant proposes that it should pay the respondents' costs of Newcrest's notice of motion up to and including 15 September 2014, being the date on which it was heard. The applicant's notice of motion includes a prayer that the respondents pay the costs of the applicant's notice of motion, but this was not pressed in the applicant's submissions. The applicant submits that costs should not be assessed forthwith because it made its concession reasonably quickly after it was served with the respondents' submissions on 2 and 3 September 2014.

52 In my opinion, the applicant should be ordered to pay the respondents' costs of the proceedings to date given that it has not identified a ground of judicial review other than the one barred by the estoppel. Its r 59.9 notice may or may not disclose a ground of review. If it does not, then, as the applicant acknowledges, it is contemplated that the proceeding will be dismissed with costs. I agree that the applicant should have grappled with the estoppel issues earlier than it did. However, there are mitigating circumstances: in August, the applicant's solicitor's wife gave birth to their fourth child; he was on paternity leave for much of August looking after his wife and children at home; the respondents' written submissions were not received until 2 and 3 September 2014; thereafter he realised that the Minister had not responded to the r 59.9 notice; and on 12 September he provided the respondents with a copy of the notice of motion with respect thereto. On balance, I am not persuaded that the delay point should have the consequence of an unusual order that the respondents' costs may be assessed forthwith.

ORDERS

53 The following orders finally dispose of the two notices of motion before the Court, except for Newcrest's application for security for costs in paragraph 3 of its notice of motion.

54 The orders of the Court are as follows:

(1) Paragraphs 29 to 32 of the summons filed on 26 June 2014 are struck out.

(2) The second respondent is to provide to the other parties by 5pm on 1 October 2014 -

(a) a copy of the decision to grant the renewal of EL 3856 on 17 January 2014; and

(b) a statement of reasons for that decision, prepared in accordance with r 59.9(3) of the Uniform Civil Procedure Rules 2005.

(3) The applicant is to pay the respondents' costs of the proceeding to 17 September 2014.

(4) The proceeding, including the first respondent's application for security for costs in paragraph 3 of its notice of motion filed on 15 July 2014, is listed for directions on 10 October 2014.

(5) If the applicant seeks to amend the summons, it must file and serve a notice of motion returnable on 10 October 2014 seeking leave to amend and annexing a copy of the proposed amended summons, together with any supporting affidavits, on or before noon on 7 October 2014.

Amendments

22 September 2014 - typographical error in the heading reference to UCPR rule
Amended paragraphs: 28

Decision last updated: 22 September 2014