Land and Environment Court New South Wales Medium Neutral Citation: 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 and Newcrest Operations Limited [2013] NSWLEC 166 Hearing dates: 5, 11-12 September 2013 Decision date: 12 September 2013 Jurisdiction: Class 8 Before: Preston CJ Decision: Orders as set out at [30] Catchwords: PRACTICE AND PROCEDURE - leave to amend points of claim - judicial review of renewal of an exploration licence - addition of ground of challenge of false and misleading representations - leave granted, with the exception of one paragraph - other orders relating to case management made - costs of the applicant's notice of motion for leave to be costs in the cause of the additional ground of challenge Legislation Cited: Civil Procedure Act 2005 s 64 Environmental Planning and Assessment Act 1979 Pt 5, s 111 Mining Act 1992 ss 113, 114, 374 Category: Procedural and other rulings Parties: Gold and Copper Resources Pty Limited (Applicant) The Hon. Chris Hartcher MP, Minister for Resources and Energy, Special Minister of State, Minister for the Central Coast (First Respondent) Newcrest Operations Limited (Second Respondent) Representation: Mr T A Alexis SC with Ms A C Hemmings (Barrister) (Applicant) Mr T S Hale SC with Mr L M Waterson (Barrister) (First Respondent) Mr I M Jackman SC (Second Respondent) Hones La Hood (Applicant) Crown Solicitor's Office (First Respondent) Allens Linklaters (Second Respondent) File Number(s): 80869 of 2012 Publication restriction: No Judgment 1Gold and Copper Resources Pty Limited ('Gold and Copper Resources'), by notice of motion dated 14 August 2013, seeks leave under s 64 of the Civil Procedure Act 2005 to amend its points of claim articulating the grounds on which it claims the renewal of exploration licence E(P)L 1024 to Newcrest Operations Limited ('Newcrest') by the Minister for Resources and Energy ('the Minister') under s 114 of the Mining Act 1992 ('the Mining Act') is invalid. 2Each of the amendments Gold and Copper Resources proposes arise as a result of its inspection of documents provided by verified discovery by the respondents after 22 July 2013. In particular, Gold and Copper Resources relies on documents evidencing that Newcrest's original renewal application was changed by removing the original first page, which stated that the term of renewal sought was two years, and substituting at a later date a new first page which stated that the term of the renewal sought was five years. Gold and Copper Resources' proposed amendments to its points of claim involve pleading the different legal consequences it says flows from this change in the renewal application. 3First, Gold and Copper Resources submits that the change affected the validity of the renewal application, in that as a result of the change there was no longer extant a valid renewal application under s 113 of the Mining Act to enliven the Minister's power to renew, under s 114 of the Mining Act, the exploration licence ([40] - [45] of the further amended points of claim). 4Secondly, Gold and Copper Resources submits that Newcrest's new submission that was sent on 25 May 2009 to accompany the special circumstances renewal application (which referred to five years) was not attached to Newcrest's renewal application containing the new first page, but instead the original submission to accompany the special circumstances renewal application (which referred to two years) was left attached to the renewal application. 5Newcrest's special circumstances submissions set forth the reasons that Newcrest submitted should enable the Minister to be satisfied under s 114(6) of the Mining Act that special circumstances existed to justify renewal of the exploration licence over an area exceeding half the area over which the licence was in force when the application for renewal was made. Gold and Copper Resources alleges that as a result of the new special circumstances submission not being attached to the changed renewal application, there was no special circumstances submission in support of the renewal application for more than five years, for the purposes of s 114(6). Alternatively, Gold and Copper Resources alleges that the effect of substituting the new special circumstances submission for the original submission was either to withdraw the original and replace it with the new submission on 27 May 2009, which was outside the prescribed time period, or to render the renewal application invalid, as the new submission had not been certified as correct (at [46] - [52] of the further amended points of claim). 6Thirdly, Gold and Copper Resources alleges that the determination under Pt 5 of the Environmental Planning and Assessment Act 1979 ('EPA Act') that the activities permitted under the exploration licence were not likely to significantly affect the environment was made prior to Newcrest submitting the new first page of the renewal application, and the new submission to accompany the special circumstances renewal application, and therefore was based on a two year period and not the five year period. As a consequence, Gold and Copper Resources alleges that the Minister failed to assess the environmental impact of the five year activity, as required under s 111 of the EPA Act (at [53] - [62] of the further amended points of claim). 7The Minister and Newcrest do not oppose leave being granted to Gold and Copper Resources to raise these three grounds of challenge. 8Fourthly, Gold and Copper Resources alleges that the renewal of the exploration licence was procured by false or misleading representations made by a representative of Newcrest and three departmental officers (at [63] - [110] of the further amended points of claim). Leave to amend to raise this ground is opposed by both the Minister and Newcrest. 9After hearing arguments on the version of the further amended points of claim annexed to the affidavit in support of the motion for leave to amend the points of claim, Gold and Copper Resources further amended this fourth ground of challenge to better plead the elements of this ground. I will address the second amended version of this ground as provided to the respondents and to the Court on 11 September 2013. 10In relation to the Newcrest representative, Ms Bowyer, Gold and Copper Resources alleges that when she emailed Mr Capnerhurst of the Department with the new first page of the renewal application, Ms Bowyer knew that: the current exploration licence was due to expire; the time under s 113(2) of the Mining Act for renewal of the exploration licence had already expired; she was required to certify and had certified as correct the particulars of the original renewal application; and her certification of the original renewal application included the original submission to accompany the special circumstances renewal application. Gold and Copper Resources alleges that Ms Bowyer, by sending the emails to Mr Capnerhurst attaching the replacement first page of the renewal application, intended for it to be substituted for the original first page so that it and the remaining part of the renewal application would appear on its face to have been lodged within time and be seeking renewal for five years and not two years (at [68], [69], [72] of the further amended points of claim). 11Gold and Copper Resources alleges that at the time of sending the emails, Ms Bowyer knew that: in practice, Mr Capnerhurst, Mr McDonald and/or Mr New of the Department would consider Newcrest's renewal application and would recommend renewal or refusal of renewal of the exploration licence to the Exploration Titles Committee (ETC); in practice, the ETC would consider and recommend the renewal or refusal of the renewal application; Mr New was authorised as the Minister's delegate to renew or to refuse to renew the exploration licence; and Mr New would implement the recommendation of the ETC with respect to the renewal or the refusal of renewal of the exploration licence. 12Gold and Copper Resources then alleges that on or after 20 May 2009 when the new first page was substituted for the original first page and attached to the remaining part of the renewal application, the changed document conveyed to Mr Capnerhurst, Mr McDonald, Mr New and the ETC two representations: (a)that the application for renewal of the exploration licence for five years had been received by the Department within the time prescribed by s 113(2) of the Mining Act and on 27 March 2009; and (b)that the application for renewal of the exploration licence for five years had been certified as correct at the time of receipt by the Department on 27 March 2009 (at [76]). 13Gold and Copper Resources alleges that at the time of sending the emails, Newcrest intended to convey to those persons those representations (at [77]). 14Gold and Copper Resources alleges each of the representations were false or misleading, and were known to be false of misleading by Newcrest from 20 May 2009 (at [78]), and were false or misleading within the meaning of s 374 of the Mining Act (at [80]). 15Gold and Copper Resources alleges that Newcrest made the representations to ETC to induce a belief a certified renewal application of the exploration licence for five years had been lodged within the time prescribed by s 113(2) of the Mining Act and to procure renewal of the exploration licence for five years rather than two years (at [81]). 16In relation to Mr Capnerhurst, Gold and Copper Resources alleges: (a)that Mr Capnerhurst knew the representations were false or misleading (at [82]); (b)by substituting the new first page for the original first page, and attaching it to the original renewal application, Mr Capnerhurst made representations to Mr McDonald, Mr New and the ETC (at [83]); (c)by preparing and signing a minute paper to the ETC regarding the special circumstances renewal and recommending renewal for five years, and without correcting the representations 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 (at [83] - [87]); (d)by signing the minute paper, Mr Capnerhurst knew that in practice the ETC would recommend renewal or refusal of renewal of the exploration licence and Mr New would implement the recommendation of the ETC as the Minister's delegate (at [86]); (e)the support of Mr Wood, the principal geologist of the Department, for the special circumstances renewal of the exploration licence for five years was procured by the representations and by Mr Capnerhurst's failure to correct the representations (at [88] - [90]); and (f)Mr Capnerhurst made the representations so as to induce a belief that a certified renewal application of the exploration licence for five years had been lodged within the time prescribed by s 113(2) of the Mining Act and to obtain from the ETC the recommendation of renewal for five years rather than for two years (at [91]). 17In relation to Mr McDonald, Gold and Copper Resources alleges: (a)Mr McDonald knew the representations were false or misleading from 3 July 2009 (at [92]); (b)by preparing and signing a recommendation to the ETC recommending the special circumstances renewal for five years, and without correcting the representations he knew to be false or misleading, Mr McDonald made or was knowingly concerned in the making of representations to Mr New and the ETC (at [93] - [96]); (c)by signing the recommendation, Mr McDonald knew that in practice the ETC would recommend renewal or refusal of renewal of the exploration licence and that Mr New would implement the recommendation of the ETC as the Minister's delegate (at [95]); and (d)Mr McDonald made the representations so as to induce a belief that a certified renewal application of the exploration licence for five years had been lodged within the time prescribed by s 113(2) of the Mining Act and to obtain from the ETC the recommendation of renewal for five years rather than for only two years (at [97]). 18In relation to Mr New, Gold and Copper Resources alleges: (a)From 7 July 2009 when Mr New received the recommendation from Mr McDonald, Mr New knew the representations were false or misleading (at [99]); (b)Mr New supported the recommendation for renewal of the exploration licence (at [100]); (c)Mr New knew that the recommendation endorsed by him would be considered and relied on by the ETC (at [101]); (d)Mr New knew that in practice the ETC would recommend renewal or refusal of renewal of the exploration licence and that he would implement the recommendation of the ETC as the Minister's delegate (at [103]); and (e)in attending the ETC meeting without correcting the representations which he knew to be false or misleading, Mr New induced a belief by ETC that a certified renewal application of the exploration licence for five years had been lodged within the time prescribed by s 113(2) of the Mining Act and to obtain the recommendation of renewal for five years rather than for only two years (at [105]). 19In relation to the ETC, Gold and Copper Resources alleges: (a)the ETC considered and presumed the regularity of the renewal application of the exploration licence for five years, considered the minute paper (as endorsed by Mr Wood) and the recommendation as supported by Mr New; and recommended the renewal of the exploration licence for five years (at [104]); and (b)the ETC was deceived by the representations, and the recommendation of the ETC for renewal of the exploration licence for five years was procured by the representations that were false and misleading and by Mr Capnerhurst's, Mr McDonald's and Mr New's failure to correct the representations (at [106]). 20Gold and Copper Resources then pleads that following the ETC's recommendation, Mr New, as the Minister's delegate, granted the renewal of the exploration licence (at [108]). As the recommendation of the ETC was procured by representations that were false or misleading, and by Mr Capnerhurst's, Mr McDonald's and Mr New's failure to correct the representations, Gold and Copper Resources alleges that the renewal was invalid and of no force or effect (at [109]). Gold and Copper Resources also alleges that Mr New's decision was, in the circumstances, manifestly unreasonable (at [110]). 21The Minister's opposition to Gold and Copper Resources' fourth ground, as articulated above, was on two bases: the pleading was deficient and the claim was doomed to fail. 22The first ground of opposition has been addressed to a large extent by the further revisions by Gold and Copper Resources of its points of claim articulating this ground. Gold and Copper Resources has pleaded four elements for its ground of challenge that the Minister's decision to renew the exploration licence was procured by deceit. It has pleaded: the various representations by conduct, words or silence; the making of those representations with knowledge of their falsity or misleading nature; the making of the representations with the intention to induce others (the Departmental officers and the ETC) to act upon them; and the acting upon the representations by the ETC and the Departmental officers. 23Nevertheless, the Minister still takes issue with the manner in which the elements are pleaded in the further amended points of claim and their particularity. However, I consider that the further amended points of claim, in their most recent form, sufficiently articulate this fourth ground of challenge to the Minister's exercise of power to renew the exploration licence. The further amended points of claim are sufficient to allow the Minister and Newcrest to understand the case they need to meet. 24There is one paragraph I propose not to allow. This is [107] of the further amended points of claim which seeks to define the types of knowledge Gold and Copper Resources alleges the Departmental officers had so as to include reckless disregard. This had not been pleaded expressly in the earlier parts of the further amended points of claim. I consider the earlier pleading of knowledge should be the basis of Gold and Copper Resources' ground of challenge and it should not be expanded or defined by [107]. 25The Minister's second basis for opposition, which was also made by Newcrest, is that Gold and Copper Resources' fourth ground of challenge to the renewal of the exploration licence was doomed to fail. In particular, they submit that if Mr New is one of the persons who knowingly deceived the ETC in order to procure the ETC's recommendation to renew the exploration licence, he could not be deceived himself when he exercised, as the Minister's delegate, the power to renew. 26Gold and Copper Resources submits, however, that it is sufficient, in order for it to succeed, that the ETC's recommendation to renew was procured by the false or misleading representations and that Mr New as a matter of fact acted on the ETC's recommendation to renew the exploration licence, even though he knew the representations were false or misleading and that the ETC's recommendation had been procured by those false or misleading representations. Gold and Copper Resources submits that the deception of the ETC still could affect the exercise of power by Mr New as the Minister's delegate. 27I do not consider it appropriate to determine Gold and Copper Resources' ground of challenge at this stage of determining whether leave should be granted to raise the ground. It is sufficient that Gold and Copper Resources' claim is fairly arguable. Gold and Copper Resources should be permitted to argue it at trial. 28If Gold and Copper Resources is permitted to raise the four additional grounds of challenge in its further amended points of claim, it submits it can do so without jeopardising the trial set to commence on 14 October 2013. Gold and Copper Resources has proposed a timetable for the respondents to file their defences to the further amended points of claim and for evidence which will enable all parties to be ready for the trial. The Minister and Newcrest agree with the proposed timetable. 29In relation to costs, the parties agree that Gold and Copper Resources should pay the respondents' costs thrown away as a consequence of the amendments to the points of claim. In addition, the costs of Gold and Copper Resources' motion to amend should be costs in the cause of the fourth ground of challenge raised in [63] - [110] of the further amended points of claim for which leave is granted. That is to say, if Gold and Copper Resources succeeds on this fourth ground of challenge for which leave is granted the respondents should pay Gold and Copper Resources' costs of the motion seeking such leave but if Gold and Copper Resources does not succeed on that fourth ground of challenge it should pay the respondents' costs of the motion seeking such leave. 30For these reasons I make the following orders: (1)The applicant is granted leave to rely on its further amended points of claim in the form annexed hereto and marked "A" with the exception of [107]. (2)The applicant is to file and serve its further amended points of claim in respect of which leave is granted by 4pm on 12 September 2013. (3)The applicant is to pay each of the respondents' costs thrown away as a consequence of the amendments set forth in the further amended points of claim. (4)The costs of the applicant's notice of motion for leave to amend its further amended points of claim are to be costs in the cause of the ground of challenge raised in [63] - [110] of the further amended points of claim. (5)The respondents are to file and serve their further amended points of defence by 18 September 2013. (6)The applicant is to file and serve the affidavits upon which it intends to rely by 25 September 2013. (7)The respondents are to file and serve the affidavits upon which they intend to rely by 2 October 2013. (8)The applicant is to file and serve any reply and any affidavits in reply by 9 October 2013. (9)If any witness is required for cross-examination, notice is to be given at least seven days before the hearing. (10)A party who proposes to object to any part of an affidavit is to file and serve notice of its objections, including the grounds in support, at least seven days before the hearing. (11)The parties are to confer and prepare a bundle of copy documents on which the parties seek to rely. The bundle is to include a table of contents and be paginated. The bundle is not to include documents annexed or exhibited to an affidavit unless there are good reasons for it to do so. Unnecessary copying and duplication of documents is to be avoided. Any party objecting to the tender of a document within the bundle is to notify the other party of the objection and the grounds in support at least three working days before the bundle is to be filed. The documents subject to objection are to be included in the bundle, but the objection and grounds in support, as well as the party tendering the document and the party objecting to the tender, are to be noted in the table of contents to the bundle. The bundle is to be filed at least seven days before the hearing. (12)By 4pm on 10 October 2013 the parties are to cause to be delivered to the trial judge and served: (a)an outline of submissions and issues for trial; (b)a list of authorities; (c)a chronology of relevant events; (d)where the number of persons who feature warrants it, a list of relevant characters; and (e)a list of affidavits, statements and reports to be relied upon at the hearing setting out: (i)in alphabetical order the name of the deponent or maker; (ii)their dates; and (iii)the role of the deponent or the maker. (13)Parties are to notify promptly the Court if there is any material slippage in the timetable. (14)The parties have liberty to restore on 48 hours notice. ********** Annexure A pages 1-14 (PDF) pages 15-21 (PDF) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 October 2013