Plaintiff Opposes Refusal of Application for License
Mt Wills Gold Mines Pty Limited v Minister for Resources [2022] VSC 312 (14 June 2022)
Mt Wills Gold Mines Pty Limited (ACN 009 223 992), the plaintiff, seeks judicial review and other relief, relating to decisions of the Minister for Resources by her delegate, Paul McDonald. The plaintiff also seeks a declaration that Edward de Zilwa, a mining warden and the sixth defendant, had jurisdiction to hear a dispute between the plaintiff and the Minister’s delegate.
Facts:
The historic Cassilis Gold Mine is located about 16km south of Omeo, and was once a flourishing gold mine. Access to the underground workings, which extend across two adjoining areas, is possible through Snake Adit, located within Area 1, or through Shamrock Adit, located within the area of exploration licence EL5518 (‘Area 2’) which is held jointly by the third and fourth defendants, Hercules Mining Contractors Pty Ltd (ACN 109 459 118) and Starwest Pty Ltd (ACN 006 444 613) (collectively, ‘Hercules’). In 2015, the previous holder of mining licence MIN5335 went into liquidation. On 19 July 2016, the liquidators disclaimed MIN5335 as onerous property under s 568 of the Corporations Act 2001 (Cth). The tenement reverted to the State and was extinguished.
In 2017, the predecessor of the Department of Jobs, Precincts and Regions (with its predecessors, the ‘Department’) retained Pitt and Sherry, geotechnical and mining consultants, to consider treatment approaches which might facilitate the separation of Areas 1 and 2. Pitt and Sherry’s report described options, risks and costs if separation of the two areas were to be achieved. Among other recommendations, high-pressure water bulkheads were needed to control water infiltration, with significant associated risks of flooding and bulkhead failure. On 7 March 2018, Hercules lodged two applications concerning Area 1 with the Department. They were: (a) application EL006726, seeking an exploration licence over Area 1; and (b) a request for a variation of existing licence EL5518 to include Area 1.
On the same day, the plaintiff lodged application EL006728 with the Department for an exploration licence over Area 1. The plaintiff was advised that Anthony Hurst, Executive Director of Earth Resources Regulation within the Department, being a delegate of the Minister, had ranked the plaintiff’s application as the highest ranking application of the two competing exploration licence applications. Hercules lodged an objection to the application on 16 March 2020. On 4 August 2020, Mr Hurst wrote to the plaintiff to give notice that the plaintiff’s application may not adequately address the risks and hazards associated with the underground workings in Areas 1 and 2.
The plaintiff concurs with Worksafe Victoria’s findings regarding the risks associated with adjoining mining operations at Cassilis. On 26 October 2020, an internal departmental brief was issued to the Minister’s delegate recommending that the delegate vary licence EL5518 and refuse application EL006728. Acting as the Minister’s delegate, Mr McDonald made the recommended decisions and signed correspondence on 30 October 2020. The plaintiff received a letter advising that application EL006728 had been refused.
Issues:
I. Whether or not the delegate’s refusal of application EL006728 is invalid.
II. Whether or not a variation of an existing licence is subject to the provisions of pt 2 div 2 of the Act.
Applicable law:
Mineral Resources (Sustainable Development) Act 1990 (Vic) s 99 - provides that a mining warden has various powers, including to conduct a hearing, to enter and inspect land, and to require an employee of the Department to produce records or other documents held by the Department and to give information or assistance which the mining warden requests.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 - provides that the context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 - provides that considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 - provides that the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.
Swindells v Victoria [2015] VSC 19 - provides that the function of a mining warden is a ‘hybrid’, encompassing dispute resolution, administrative review, regulatory, investigative and advisory functions.
Analysis:
Part 2 of the Act consists of a series of divisions dealing with discrete subject matters, including the licence process (div 2), the licence process for direct allocation of licences relating to coal (div 3), land surveys (div 3A), agricultural land (div 4), licence tenders (div 5), licence renewals (div 6), changes to licences (div 7), licence surrender or cancellation (div 8), and the imposition of a mine stability levy for the Latrobe Valley (div 9). There is no indication in the Act that the provisions which apply to div 2 applications also apply to the provisions found in div 7. The requirements which an applicant for a licence must satisfy are set out at length in div 2. By contrast, the Minister may, after consultation with the licensee, make a licence variation at the request of the licensee or on the Minister’s own motion, addressing the different considerations listed in ss 34(2) and (2A).
Division 2 speaks of the making of an ‘application’ for a licence by the ‘applicant’ and of the ‘grant’ or ‘refusal’ of a licence by the Minister. Section 34 does not use this terminology at all. It authorises the Minister to act as the moving party, or at the ‘request’ of the licensee. It does not use the terms ‘applicant’ or ‘application’.
The ranking process exists to resolve the contest between competing applicants who apply on the same day in relation to the same area. It has no relevance to changes in existing tenements such as licence transfers, amalgamations, variations, splits, or condition changes.
There is nothing in the Act which suggests that the grant of a licence is mandatory where an application has been given the highest ranking under s 23(2). The Department did advise the plaintiff of its concerns, providing the plaintiff with the WorkSafe issues paper and the Pitt and Sherry report. The plaintiff responded outside the 14-day timeframe. The Minister’s delegate ensured that the plaintiff was alert to the Department’s concerns.
Conclusion:
All of the plaintiff’s grounds and its application for judicial review fail. The proceeding must be dismissed.
