Land and Environment Court New South Wales

• Medium Neutral Citation: Martin v Minister for Mineral and Forest Resources [2011] NSWLEC 1011
• Hearing dates: 14/5/2010, 18/8/2010 and 13/9/2010
• Decision date: 25 January 2011
• Jurisdiction: Class 8
• Before: Dixon C

Decision

1. The appeal is dismissed.

2. The costs of the proceedings are reserved.

3.The exhibits are returned except exhibits1, 2,B, C, E, and G.

• Catchwords: Judicial review of the Minister's decision to refuse an application for an exploration licence under the Mining Act 1992
• Legislation Cited: Land and Environment Court Act 1979; Mining Act 1992: ss 365(2), 293 (1)(q)(ii), 125,26, 22, 13; Supreme Court Rules r7 div 3 pt 55
• Cases Cited: Director General Department of Environment and Climate Change v Jack and Bill Issa Pty Limited [2009] NSWLEC 228; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Martin v NSW Minister for Mineral and Forest Resources [2010] NSWLEC 131; Minister for Immigration and Multicultural Affairs v SBAN [2002] FCAFC 431; SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
• Category: Principal judgment
• Parties: Anthony Gilbert Martin (Applicant); Minister for Mineral and Forest Resources (Respondent)
• Representation: Anthony Gilbert Martin - in person (Applicant); Counsel: Ms Spruce (Respondent); Solicitors: N/a (Applicant); I V Knight, Crown Solicitor (Respondent); Jessica Kavanagh (Respondent)
• File Number(s): 80002 of 2010

Judgment

1 The applicant challenges the validity of the respondent Minister's refusal of his application for an exploration licence ( ELA3747) under the Mining Act 1992 (the Act).

2 The challenge is based on several grounds. One of the grounds pleaded is that the delegation to the Minister's delegate (the decision maker) is invalid and, therefore, the decision is null and void. That ground was dealt with and dismissed on 26 July 2010 by Biscoe J in Martin V NSW Minister for Mineral and Forest Resources [2010] NSWLEC 131. Relevantly, at that time the parties agreed that this class 8 appeal, made pursuant to s293 (1)(q)(ii) of the Act, is in the nature of judicial review and not a merit hearing. The consequence of that is that the Court has no power to substitute its own decision for that of the Minister; but, rather, after a review of the evidence must either affirm the Minister's decision or refer it back to the Minister for a fresh determination.

3 Before dealing with the remaining grounds of appeal it is necessary to explain why the hearing of these proceedings has been protracted. The primary reason is that after its commencement before me on 14 May 2010 the applicant raised several separate questions which the parties requested be determined by a Judge of the Court. The hearing and judgment on those separate questions was not, as I said, delivered until 26 July 2010 and the hearing before me did not resume until 18 August 2010 and was not completed until 13 September 2010. The hearing was further complicated by the fact that the applicant, who is not legally trained, made a number of lengthy interlocutory applications during the course of the proceedings. One of those applications was that I recuse myself from hearing these proceedings on the ground of appended bias. This was said to be based on the fact that the applicant had appeared before me in other mining proceedings in which he says we engaged in "heated exchanges" and because he had appealed that decision. The transcript dated 14 May 2010 records part of his submission at [40]: "...I am not making a claim that you are a biased commissioner. It's that a third party sitting there fully aware of the background of the issues would assume that human nature being what it is, rather notwithstanding your best efforts whether a bias would creep in or not."

4 After isolating the relevant test, as detailed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]:

"... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide."

(applied by Biscoe J in Director General Department of Environment and Climate Change v Jack and Bill Issa Pty Limited [2009] NSWLEC 228), I determined that there would be no reasonable apprehension of bias by a fair-minded and informed third party on the evidence before me.

5 Because of the length of time taken to complete the hearing, it was necessary to obtain and read the transcript before writing this judgment. Having had that opportunity, I now set out the reasons for my decision in respect of the remaining issues based on the following relevant facts.

Facts

6 On 27 July 2009, the applicant applied for an exploration licence (known as ELA 3747) under section 13 (1) of the Mining Act 1992 (exhibit B p1).

7 On 18 September 2009 the Exploration Titles Committee recommended that ELA 3747 be refused on the basis that the applicant had failed to meet reporting conditions on exploration licences previously granted to him (exhibit B p43).

8 The applicant was advised of the Committee's recommendation by letter dated 8 October 2009 and invited to respond by 27 October 2009 (exhibitBp46).

9 The applicant provided further information in response to the Committee's recommendation on 14 October 2009 (exhibit B p47).

10 On 6 November 2009 the committee considered the further information provided by the applicant and confirmed its recommendation to refuse the licence (exhibit B p 49).

11 On 24 November 2009, Rodney George by delegation of the Minister and in accordance with the provisions of s22 (1) (b) of the Act refused the applicant's ELA3747 (exhibit B 51).

12 On 24 November, Steve Hughes for the Director General advised the applicant in writing that the Exploration Licence Committee had considered his representations on 6 November 2009 and confirmed their decision to recommend refusal of ELA 3747. The letter advised the applicant that the Minister decided to refuse ELA 3747 in accord with the provision of s22 (1)(b) of the Act because he had "...failed to comply with licence conditions on exploration licence No's 6949,7069,7144, and 7214. The refusal took effect on 24 November 2009" (exhibit B p52).

13 On 24 November 2009 a Gazette Notice issued for ELA3747 noting that refusal.

14 On 3 March 2010, the applicant commenced these class 8 proceedings pursuant to s293 (1)(q)(ii) of the Act against the Minister's refusal of his ELA 3747 on the basis that the decision was unlawful on several grounds.

15 On 27 April 2010, with the Court's leave, the applicant filed an amended summons and points of claim.

Affidavit and documentary evidence

16 In support of the amended summons and points of claim the applicant relies on affidavits sworn by him on 27 April 2010, 23 July 2010 and 13 August 2010 and the affidavits of Dr Haren sworn on 22 April 2010 and 6August 2010. These affidavits were allowed into evidence despite their defective form, subject to relevance, in order to afford procedural fairness to both parties because the applicant is not a lawyer.

17 The applicant also tendered a large number of documents copied from the respondent's files and other documentary material including those documents annexed his original summons sworn 3 March 2010.

18 The respondent tendered a bundle documents from the respondent's files (exhibit B).

Submissions

19 The applicant made oral submissions at the conclusion of the hearing (based on his written submissions filed on 8 July 2010) and oral submissions in reply (based on his written submissions dated 10 September 2010) that he spoke to at the further hearing on 13 September 2010.

20 The respondent made oral submissions at the conclusion of the hearing based on its written submissions filed on 13 May 2010 and also addressed the new matters raised by the applicant at the hearing.

21 For the sake of completeness, it should be recorded that the applicant left the hearing, on 16 August 2010, before counsel for the respondent had completed her final submissions. Despite advising the Court that he did not want to hear the balance of the submissions or respond to them, in the interests of procedural fairness, he was provided with a copy of the transcript of the respondents' submissions and invited to respond in writing and/or address the Court, which he did on 13 September 2010.

The grounds of appeal

22 During the course of the hearing the applicant raised several new allegations about the lawfulness of the decision making process. These new grounds were not articulated in the original summons or the amended summons. Despite that fact, the applicant was given leave to raise these new grounds, (subject to the respondent having a fair opportunity to respond) in order to bring some finality to the matter.

23 I will deal with the applicant's submissions by heading and in the same order as dealt with by the respondent.

Was there a valid delegation?

24 The allegations about the validity of the delegation were dismissed by BiscoeJ in the decision of Martin V NSW Minister for Mineral and Forest Resources [2010] NSWLEC 131 as noted above at [2].

Allegation of bad faith

25 The allegation that employees of the department (but not the delegate who made the decision to refuse the application) acted in bad faith in relation to his application was not made out on the evidence.

26 I accept as the respondent submits that an allegation of bad faith is a serious matter and cannot be made lightly but must be clearly alleged and proved: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749. Furthermore, the inquiry must be directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith as alleged by the applicant. It is the ultimate decision maker, who must be shown to have acted in bad faith: Minister for Immigration and Multicultural Affairs V SBAN [2002] FCAFC 431.

27 The applicant did not produce any evidence to support such an allegation of bad faith against the decision maker; therefore, I accept the respondent's submission that this ground of appeal is unsupportable and should be dismissed.

Allegation of contempt

28 The respondent submits that the Court may exercise the same functions vested in the Supreme Court in respect of the apprehension, detention and punishment of persons guilty of contempt: s67 of the Land and Environment Court Act 1979.

29 However, Division 3 of Part 55 of the Supreme Court Rul es r7 requires that a statement of charge specifying the contempt be made or that a summons is filed. As no statement of charge had been filed I dismiss this ground of appeal.

Review of the Minister's decision

30 Much of the hearing and evidence concerned this ground of appeal.

31 Firstly, the applicant submits that the Minister had no power to refuse his valid application for an exploration licence made under s13 of the Act.

32 Although accepting that the applicant did make a valid application under s13 of the Act, the Respondent submits that Section 22 of the Act confers on the Minister the power to grant or refuse an application for an exploration licence. The section states:

22 Power of decision-maker in relation to applications

(1) after considering an application for an exploration licence, the decision-maker:

(a) may grant to the applicant an exploration licence over all or part of the land over which a licence was sought, or

(b) may refuse the application.

(2) Without limiting the generality of subsection (1) or any other provision of this Act, an application may be refused on any one or more of the following grounds:

(a) that the applicant (or, in the case of an applicant that is a corporation, a director of the corporation) has contravened this Act or the regulations (whether or not the person has been prosecuted or convicted of any offence arising from the contravention) or has been convicted of any other offence relating to mining or minerals,

(b) that the decision-maker reasonably considers that the applicant provided false or misleading information in or in connection with the application.

(3) The decision-maker may grant a single exploration licence in respect of 2 or more applications or 2 or more exploration licences in respect of a single application.

33 I accept the respondent's submission that the words in s 22(2) "without limiting the generality of subsection (1)" confer a broad discretion. The words clearly empowers the Minister to refuse an ELA on any of the specified grounds or any other basis provided the discretion is exercised reasonably and having regard to the objects and purposes of the Act.

34 Secondly, the applicant submits that there is no power to refuse his ELA 3747 because of his failure to comply with conditions on other existing Els. In fact, the applicant submits, that there is no power to impose reporting conditions of the kind that the applicant's other Els were subjected too.

35 The respondent refutes this and submits that s26 (1) of the Act empowers the Minister to issue an exploration licence subject to conditions. Furthermore, that discretion is also broad and there is no limit on the conditions subject to the need to be reasonable and in compliance with the objects and purpose of the Act. I accept the respondent's submission.

36 Thirdly, the applicant submitted that because there is a power to cancel a licence for the breach of a condition (s125 of the Act) there is no power to refuse an ELA.

37 I reject the applicant's submission because there is no doubt that the words in S22 (1)(b) confer a broad discretion to refuse an application for an exploration licence. Furthermore, in exercising that discretion I accept the respondent's submission that it is reasonably open to the Minister to consider whether an applicant has complied with the conditions of other Els because compliance with conditions of an EL is consistent with the objects and purposes of the Act. It is based on the evidence a relevant and reasonable consideration.

38 Fourthly, the applicant asserts that there is a culture and practice in the Department to ignore non-compliance with conditions of Els.

39 There was no evidence before the Court to support this submission and therefore I reject it.

40 Fifthly, the applicant submits that he had in fact complied with his obligation to provide reports under the conditions imposed on his other Els although he conceded that they were provided late.

41 The respondent rejects this and refers the Court to page 44 of exhibit A and in particular the committee's recommendation to the application. The respondent submits that it was not only the delay in providing the reports that was unacceptable but also the substance of the reports. According to the respondent's evidence the reports did not, as required, satisfactorily demonstrate that the exploration programme and expenditure requirements had been meet.

42 According to the evidence, the applicant was advised by letter dated 8 October 2009 that the committee had recommended that his ELA be refused (p46 exhibit B). The letter invited him to respond with further information by 27 October 2009. He did respond on 14 October 2009.

43 In the applicant's email on 14 October he says that all outstanding reports will be submitted by 27 October 2009.

44 According to the evidence before the Court that did not happen. Consequently, the recommendation to refuse the ELA 3747 was accepted and the ELA 3747 refused by the Minister. Exhibit A (which is the summary of reporting compliance on Els held by the applicant) indicates in respect of each EL held by the applicant the due date for various reports and the date that they were in fact submitted. None of the outstanding reports were submitted by 27 October 2009.

45 According to the evidence in exhibit A, three outstanding reports were submitted on 4 November 2009, one was submitted on 10 November 2009, one was submitted on 17 November 2009 and three were submitted on 7 December 2009.

46 Based on the evidence, the reports were submitted 15 months, 10 months, 5 months, 15 months and 9 months late. The applicant submits that he had permission from particular officers of the department to lodge the reports late. However, the evidence he relies upon (emails and the like) do not displace the request for all outstanding reports by 27 October 2009 in respect of the committee's consideration of ELA 3747.

47 Finally, the applicant alleges that the department has bias against him. He relies on comments made by departmental officers in an email in exhibit 9 and asserts that there was a decision by the officers of the department that he should not be granted any further titles.

48 The respondent refers the Court to the words in the exhibit 9 "...at this point of time." According to the evidence before the Court the matter was referred back to the Exploration Titles Committee on the same day that the applicant's ELA first came to the committee so in the Minutes of the committee meeting of 18 September 2009 (p43 of exhibit B) there is a recommendation from the committee that ELA3697 (which the email in exhibit 9 is referring to) be granted and on the same day the recommendation that ELA 3747 not be granted. So in fact while one ELA 3747 was refused another ELA 3697 was granted.

49 There is no evidence before the Court to support the submission that bias against the applicant was a consideration or the reason for the refusal of ELA3747 or that their had been a prejudgment of the ELA.

Alleged disclosure of confidential information

50 The applicant alleges that confidential and commercially valuable information submitted in his exploration licence application ELA3747, in conjunction with similar confidential commercially valuable information submitted by the applicant since 20 July 2002 to the Minister for Mineral resources and his Departmental Officers, has since been used contrary to and in violation of the Act.

51 As the respondent submits S365 of the Act makes it an offence for a person to disclose any information obtained in connection with the administration or execution of the Act unless the disclosure falls within one of the exceptions set out in that section.

52 Section 365(2) makes it an offence for a person employed in the Department to use information obtained in connection with the administration or execution of the Act for personal gain. At the time of the completion of the hearing and reservation of my decision the Court did not have jurisdiction to hear proceedings for an offence under the Mining Act: s21C Land and Environment Court Act 1979.

53 On 15 November 2010, the Court gained jurisdiction to hear and determine proceedings for offences under Part 17A of the Act . An offence under s365 (2) is not under Part 17A of the Act, therefore, the Court has no jurisdiction to deal with this ground of appeal. In any event, even if it did have jurisdiction the applicant has not filed a statement of charge to enliven that jurisdiction. This ground of appeal is therefore dismissed.

Conclusion

54 Based on the above, there is no evidence to support a finding that the Minister's decision to refuse ELA 3747 was unlawful. Accordingly, the Court Orders that:

(1) The appeal is dismissed.

(2) The costs of the proceedings are reserved.

(3) The exhibits are returned except exhibits 1,2,B, C, G, and E.

**********

Susan Dixon

Commissioner of the Court

Decision last updated: 31 January 2011