Land and Environment Court New South Wales Medium Neutral Citation: Gold and Copper Resources Pty Ltd v Minister for Resources and Energy [2014] NSWLEC 33 Hearing dates: 3 April 2014 Decision date: 09 April 2014 Jurisdiction: Class 8 Before: Craig J Decision: 1. Direct that the parties bring in short minutes of order consistent with these reasons for judgment. 2. Costs may be argued. 3. Exhibits may be returned. Catchwords: PRACTICE AND PROCEDURE - leave to amend pleadings - challenge to validity of mining leases - whether amending legislation denied the ground of challenge - principles applicable to amendment - whether challenge fairly arguable - amendment raised question of statutory interpretation - appropriate to determine question finally as not demonstrating a claim that was fairly arguable - additional grounds of challenge added by amendment - limited basis upon which amendment allowed to allege failure to take into account a relevant consideration Legislation Cited: Civil Procedure Act 2005 (NSW) Mining Act 1992 (NSW) Mining Amendment (Development Consent) Act 2013 (NSW) Mining (General) Regulation 1997 (NSW) Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122 Blue Mountains Conservation Society Inc v Delta Electricity (No 3) [2011] NSWLEC 145; 81 NSWLR 407 Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261 Horton v Jones (No 2) (1939) 39 SR (NSW) 305 Midcoast Lime Co Pty Ltd v Minister for Primary Industries [2008] NSWSC 331 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 NA & J Investments Pty Ltd v Minister Administering Water Management Act; 2000 (No 4) [2012] NSWLEC 120 R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; 144 CLR 45 Category: Procedural and other rulings Parties: Gold and Copper Resources Pty Ltd (Applicant) Minister for Resources and Energy (First respondent) Cadia Holdings Pty Ltd (Second respondent) Representation: A E Galasso SC with A C Hemmings (Applicant) J S Emmett (First respondent) N J Williams SC with S J Free (Second respondent) Hones La Hood (Applicant) I V Knight, Crown Solicitors (First respondent) Allens Linklaters (Second respondent) File Number(s): 81143 of 2012 Judgment 1On 3 April 2014 I heard notices of motion filed by the applicant and first respondent respectively. The hearing of evidence and argument having concluded on that day, on 4 April I announced the decision that I had reached in respect of each notice of motion. However, I refrained from making orders at that time as it seemed fairer and more appropriate to do so at the time of publishing my reasons for judgment. Particularly was this the case as consequential directions were required for the preparation of the matter for hearing. With that in mind, I stood over the proceedings to Wednesday 9 April 2014. 2These are my reasons for determining the notices of motion in the manner announced on 4 April. 3By a summons filed on 13 November 2012, Gold and Copper Resources Pty Ltd (Gold & Copper) commenced proceedings in which the validity of two mining leases identified as ML 1472 and ML 1481 is challenged. These mining leases were granted by the respondent Minister to Cadia Holdings Pty Ltd (Cadia), the second respondent. ML 1472 was granted on 23 October 2000 while ML 1481 was granted on 8 March 2001. 4Points of Claim were filed by Gold & Copper in which it pleaded that the mining leases were granted in breach of s 65 of the Mining Act 1992 (NSW) and for that reason were invalid. By notice of motion filed on 11 December 2013, Gold & Copper seeks leave to amend its Points of Claim. 5By notice of motion filed on 21 November 2013, the Minister seeks an order for summary dismissal of the proceedings. As is apparent from the date of its filing, the Minister's notice of motion preceded the motion by Gold & Copper to amend its Points of Claim. 6Both notices of motion are now to be determined. The parties accept that the determination of Gold & Copper's notice of motion will determine the outcome of the Minister's motion. 7The form in which Gold & Copper seeks to amend its Points of Claim is annexed to an affidavit sworn by its solicitor, Jason Hones, on 11 December 2013. The amendments sought are, in substance: (i)further averments supporting the claim of invalidity on the ground that s 65 of the Mining Act was breached ((19)-(22)); (ii)invalidity on the basis that each mining lease application founding the grant of ML 1472 and ML 1481 respectively failed to comply with s 51 of the Mining Act ((23)-(33) and (43)-(53)); (iii)invalidity by reason of the failure to take into account relevant considerations when granting each mining lease ((34)-(40) and (54)-(60)); and (iv)invalidity on the ground that the decision to grant each mining lease was manifestly unreasonable ((41)-(42) and (61)-(62)). 8Both the Minister and Cadia oppose the additional matters pleaded in pars (19) to (22) directed to the claimed breach of s 65. The Minister does not oppose the other amendments sought by Gold & Copper. 9For its part, Cadia does not oppose the amendments directed to the claimed breach of s 51 nor the ground of challenge founded upon manifest unreasonableness. While it accepts that the ground alleging failure to take into account a relevant consideration may be pleaded on one of the bases identified in the amended Points of Claim ((39)-(40) and (59)-(60)), it opposes the other bases upon which that head of claim is founded ((34)-(38) and (54)-(58)). The relevant principles 10The principles to be applied in an application of the present kind are not in dispute. Subsections (1) and (2) of s 64 of the Civil Procedure Act 2005 (NSW) enable the Court "at any stage of the proceedings" to amend or grant leave to amend a document and provide that all necessary amendments are to be made for the purposes, among others, of determining the real questions raised in the proceedings and of avoiding a multiplicity of proceedings. 11The discretion afforded by s 64 is to be exercised in accordance with the overriding purpose expressed in s 56 of the Civil Procedure Act. In the present context, that purpose is to be informed by the provisions of ss 57 to 60 (Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122 at [63]). 12In applying the statutory provisions, regard must be had to considerations of the kind identified in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 and the observations made by the Full Court of the Federal Court of Australia in Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261 at [51]. Application of the statutory provisions and principles to which I have referred must also be considered by reference to those principles pertaining to the substance of any amendment that is sought. The governing principle in that context is that the Court will not allow an amendment if it is so obviously futile that it would be liable to be struck out had it formed part of the original pleading (Horton v Jones (No 2) (1939) 39 SR (NSW) 305 at 310) . 13As a corollary of the last proposition, it is necessary to consider whether the amended claim or claims are "fairly arguable". While it is accepted that stringency attaches to the striking out or summary dismissal of claims, the need to resolve questions of law in order to address the concept of a claim that is "fairly arguable" is not a barrier to summary dismissal or strike out and, as a consequence, not a barrier to refusal of an amendment that is sought (NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 (No 4) [2012] NSWLEC 120 at [19]. The high threshold set by the authorities for strike out or summary dismissal of a claim may more readily be satisfied where the claimed defect in a pleaded cause of action involves a question of law (Blue Mountains Conservation Society Inc v Delta Electricity (No 3) [2011] NSWLEC 145; 81 NSWLR 407 at [22]). The s 65 Issue 14The additional matters that Gold & Copper seek to plead under its claim alleging breach of s 65 of the Mining Act are a consequence of the amendment of that Act in November 2013. On 13 November 2013 assent was given to the Mining Amendment (Development Consent) Act 2013 (NSW). The Act commenced on the date of assent. It amended s 65 of the Mining Act by omitting subss (1) and (2) and inserting new subsections in their place. It also inserted a new Pt 17 in Sch 6 to the Mining Act. That Part provided: "Part 17 Provisions consequent on enactment of Mining Amendment (Development Consent) Act 2013 143 Existing mining leases (1) This clause applies to a mining lease granted before the commencement of the Mining Amendment (Development Consent) Act 2013 for which appropriate development consent was required under section 65. (2) If a development consent was in force in relation to land over which the mining lease was granted when the lease was granted and the development consent related to any of the activities permitted under the lease by this Act, the grant of the mining lease is taken to comply, and to always have complied, with the requirements of section 65. (3) To avoid doubt and without limiting subclause (2), a development consent related to a mining purpose permitted under a mining lease granted in respect of a mineral or minerals is sufficient for the purposes of that subclause even if the development consent is not for the mining of a mineral or minerals. (4) This clause applies to a mining lease even if the mining lease is or has been found to be invalid because of a contravention of the requirements of section 65." 15The claim founded upon failure to comply with s 65, as presently pleaded, is that a development consent, known as the Ridgeway Consent, was not an "appropriate development consent" within the meaning of that section. The Ridgeway Consent had been granted by the Minister on 3 October 2000. While it related to the land to which ML 1472 and ML 1481 applied, the development consent only contemplated development activities on the land to which each mining lease applied that were for "mining purposes" within the meaning of the Mining Act. Shortly stated the claim is that each mining lease had been granted "for the purpose of prospecting and mining" for nominated minerals on the land to which that lease applied. As the development consent had not authorised "mining" on that land, it was not "an appropriate consent" to found the grant of a mining lease conformably with s 65. 16By its proposed amendment in pars (19) to (22) of the Points of Claim, Gold & Copper accepts that each of ML 1472 and ML 1481 was a lease to which cl 143 of Sch 6 to the Mining Act applied. However, the pleading maintains that subclauses (2) and (3) of that clause do not apply in the present circumstances because the Ridgeway Consent only authorised activities for "mining purposes" whereas those purposes were not permitted under the mining leases, having regard both to the terms of those leases and also the provisions of s 73 of the Mining Act. 17Section 73 relevantly provided: "73 Rights under mining lease (1) The holder of a mining lease granted in respect of a mineral or minerals may, in accordance with the conditions of the lease: (a) prospect on the land specified in the lease for, and mine on that land, the mineral or minerals so specified, and (b) carry out on that land such primary treatment operations (such as crushing, sizing, grading, washing and leaching) as are necessary to separate the mineral or minerals from the material from which they are recovered, and (c) carry out on that land any mining purpose. (1A) The holder of a mining lease granted in respect of a mining purpose or mining purposes only may, in accordance with the conditions of the lease, carry out the mining purpose or mining purposes specified in the lease. (2) ... " 18In submissions, Gold & Copper relies upon s 73 in two ways. First, it contends that the provisions of the chapeau to subs (1) of the section, in its reference to "the conditions of the lease", acts as an important constraint upon the operation of pars (a), (b) and (c) of the subsection. Secondly, it submits that to the extent to which s 73(1) comprehends the expanded activities identified in pars (a), (b) and (c) of the subsection under a mining lease, those activities can only be carried out on the land to which the particular lease relates. Relevantly, the only mining purposes to which the subsection can relate are the mining purposes referable to the mining operations authorised by ML 1472 and ML 1481. The "mining purposes" authorised by the Ridgeway Consent are mining purposes related to mining being carried out under a different mining lease, namely ML 1449. That lease authorises mining on land adjacent to ML 1472. 19In summary, Gold & Copper submits that the provisions of the 2013 amendment to the Mining Act do not override the provisions of s 65, even in its amended form, requiring an appropriate development consent for mining activities to be carried out on land prior to the grant of a mining lease. 20The Minister and Cadia submit that the case as pleaded in relation to contravention of s 65 is untenable, having no reasonable prospect of success. This, so it is submitted, is because cl 143 of Sch 6 to the Mining Act provides a "complete answer" to the challenge founded upon s 65. 21At the time at which each of ML 1472 and ML 1481 were granted by the Minister, s 65 of the Mining Act provided: "65 Development Consents under the Environmental Planning and Assessment Act 1979 (1) This section applies: (a) in relation to a mining lease for a mineral or minerals, to land for which development consent is required before the land may be used for the purpose of obtaining minerals, and (b) in relation to a mining lease for a mining purpose or mining purposes only, to land for which development consent is required before the land may be used for that purpose or those purposes. (2) The Minister must not grant a mining lease over land to which this section applies unless an appropriate development consent is in force in respect of the land. (3) ... " As I have indicated, the Ridgeway Consent was the consent relied upon by the Minister for the grant of each of the mining leases. 22For the purpose of understanding the submissions of the parties, an aerial photograph was tendered showing the area of land approximating the area to which the Ridgeway Consent relates. Superimposed upon this aerial photograph is an outline of areas within which various activities associated with the operation of Cadia's mines are said to be taking place. As explained on behalf of Gold & Copper, the photograph depicts the location of underground mining activities in the north western section of the area. This area is located within the boundary of a mining lease indicated as being ML 1449. The parties accept that this mining lease authorised the mining of minerals including gold and copper. 23The aerial photograph also shows the boundaries of ML 1472. It adjoins ML 1449 on the north, west and south. A conveyor facility is shown as passing through ML 1472 from the area of ML 1449 to a central processing area located within the area of a different mining lease said to be ML 1405. Although separated by the central processing area, a discrete and separate area of ML 1472 is shown to be located adjoining the eastern boundary of ML 1405. Within that part of ML 1472 is an area identified as Rodds Creek Dam. ML 1481 adjoins the area of ML 1405 to the south. A notation marked on the aerial photograph depicting the location of ML 1481 indicates the "Southern Tailings Facility" as being within the area of that lease. 24I have identified these various areas and relevant notations on the exhibited photograph because they bear upon matters relevant to the consideration of the present motions. It is accepted by all parties that the conveyor facility that I have described together with Rodds Creek Dam and the Southern Tailings Facility were identified as components of the development for which the Ridgeway Consent was granted. Further, those facilities or activities are all of a kind that fulfil the definition of "mining purpose" within the meaning of the Mining Act (Dictionary to the Act and cl 6 of the Mining (General) Regulation 1997 (NSW)). 25With that understanding of the distribution of activities sanctioned by the Ridgeway Consent, it is appropriate to return to the interpretation issue that lies at the heart of the debate among the parties. 26The additional pars (19) to (22) sought to be included in the amended Points of Claim are in the following terms: "19. By the Mining Amendment (Development Consent) Act 2013 (Amending Act) section 65(2) has been amended. 20. By clause 143(1) of Schedule 6 of the Amending Act, the savings and transitional provisions in clause 143 apply to a mining lease granted before the commencement of the Amending Act on 13 November 2013. 21. The Ridgeway Consent was not an appropriate development consent in force for the purposes of s65 of the Mining Act in relation to the grant of ML 1472 and ML 1481 by virtue of the operation of the savings and transitional provisions to the Amendment Bill as clauses 143(2) and (3) of Schedule 6 of the Mining Act do not apply in the circumstances. Particulars (a) The only development consent in force in relation to land over which ML 1472 and ML 1481 were granted when each of those leases were granted was the Ridgeway Consent; (b) By their respective terms, ML 1472 and ML 1481 purported to authorise activities under them for the purposes of prospecting and mining for gold, copper, lead, zinc, molybdenite and silver, and no other purpose; (c) The Ridgeway Consent, being a development consent in force in relation to land over which ML 1472 and ML 1481 relates, did not authorise activities for the purposes of mining on that land, and only authorised mining purposes. (d) The mining purposes permitted under the Ridgeway Consent were not activities permitted under ML 1472 and ML 1481 by the express terms of those leases, 22. By reason of the foregoing, ML 1472 and ML 1481 are invalid and clause 143(2) of Schedule 6 of the Mining Act, does not operate retrospectively to validate the grant of ML 1472 or ML 1481." 27As subparagraph (c) of par (21) of the proposed pleading alleges, the Ridgeway Consent authorised the carrying out of "mining purposes" on ML 1472 and ML 1481. Clause 143(2) of Sch 6 to the Mining Act, the terms of which I have earlier quoted, is directed to a development consent that relates to "any of the activities permitted under the lease by this Act" (added emphasis). One such activity permitted by s 73(1)(c) of the Mining Act is the carrying out of "any mining purpose". By operation of the provisions of the Act and Regulation to which I have earlier referred, the provision of conveyors, dams and tailing facilities are all mining purposes. 28Gold & Copper submits that s 73(1)(c) is not engaged, having regard to the terms in which each of ML 1472 and ML 1481 were granted. More particularly, Gold & Copper submits that the carrying out of a "mining purpose" is not in accordance with the conditions of each lease. I do not accept these submissions as correct. 29First, the obvious purpose of s 73(1) is to identify in pars (a), (b) and (c) those activities that are authorised to be conducted by the holder of a mining lease for the mining of minerals. It is the manner in which those activities may be conducted that is circumscribed by "the conditions of the lease". That interpretation, so it seems to me, not only reflects the language of the subsection but also reflects the logical consequence of a mining lease in respect of minerals. Without the right expressed by the section, the entitlement to mine (par (a)), to separate mineral from its parent material (par (b)) or, for example, to maintain a building or mining plant on site for the mining of minerals (par (c)) would render the grant of a mining lease a potentially sterile exercise. 30The terms in which each of ML 1472 and ML 1481 were granted are important to be noticed. Each was in the form of a deed. After reference to the parties, being the Minister and Cadia in each case, each deed recites an application for a mining lease and fulfilment of "all conditions and things required to be done and performed before granting the lease". The terms in which the grant is made, other than stating the land area, is the same in each lease. The grant is expressed in the following terms: " ... NOW THIS DEED WITNESSETH that in consideration of the observance and performance of the covenants contained in this Deed and the payment of royalty by the lease holder, the Minister in pursuance of the provisions of the Act DOES HEREBY demise and lease to the lease holder ALL THAT piece or parcel of land containing by admeasurement [area inserted] and more particularly described and delineated on the plans attached for the purpose of prospecting and mining for gold, copper, lead, zinc, molybdenite and silver. TO HOLD the said land together with any appurtenances thereon subject to: (a) such rights and interests as may be lawfully subsisting therein or which may be reserved by the Act at the date of this Deed; and (b) such conditions, provisos and stipulations as are contained in this Deed UNTO the lease holder from and including the date of this Deed for the period of 21 years for the purpose as stated and for no other purpose." 31Gold & Copper submits that the grant of the lease for the purpose of prospecting and mining the nominated minerals together with the concluding words "for the purpose as stated and for no other purpose" constitutes a "condition" of the lease that precludes the operation of "any mining purpose" in accordance with s 73(1)(c). I do not agree in that submission. 32First, the terms of grant in each lease are distinct from the conditions of the lease directed to the control or circumscription of the activities identified. The "conditions, provisos and stipulations" follow in clauses numbered 1 to 4, together with a number of further conditions set forth in a schedule and identified by number in clause 4. 33The conditions so identified do not, by reason of the structure of the lease, have the effect of ousting the operation of any of pars (a), (b) and (c) of s 73(1). The activities authorised by those paragraphs must be seen as an incident of the right to mine in accordance with a mining lease. As such, the entitlement of Cadia to carry out a "mining purpose" conformably with s 73(1)(c) is not ousted by the terms of each lease in which the grant is expressed to be confined to the purpose of prospecting and mining for the nominated minerals. 34The dichotomy that I have identified between the terms of grant and imposition of conditions reflects the structure of Div 3 of Pt 5 of the Mining Act. Section 63, which is the first section in that Division, is the source of power for the grant of a mining lease. Section 70, also within Div 3, identifies in subs (1)(a) a condition to which each mining lease is subject while par (b) of the same subsection identifies the power to impose other conditions that may be imposed "when the lease is granted, or at any other time under a power conferred by this Act". 35Quite apart from the operation of s 73(1) of the Mining Act, the terms of each of ML 1472 and ML 1481 make apparent that the activities comprehended by them included "mining purposes". That is evident in a number of ways. Clause 4 of each lease provides in par (d): "THAT all the conditions and provisions contained in the Mining Act 1992 and the Regulations thereunder, the Mines Inspection Act 1901 and the Coal Mines Regulation Act 1992 or any other law hereafter to be passed or prescribed shall be incorporated within this Deed as conditions and provisions of the lease granted. The leaseholder hereby covenants to observe, fulfil and perform the same." This clause would be apt to include the provisions of s 73. 36The conditions annexed to each lease by operation of cl 4 generally take a common form. Condition 2(1) requires, in terms, that mining operations "including mining purposes" be conducted in accordance with a Mining Operations Plan satisfactory to the Director-General. By subparagraph (3) of the same condition, the plan referred to in (1) is required to be lodged with the Director-General "prior to the commencement of mining operations (including mining purposes) ...". 37In the case of ML 1481, Conditions 25 to 27 address the tailings dam, earlier referred to as the "Southern Tailings Facility" shown on the overview plan within the area of that lease. Those conditions are directed to the construction and management of the tailings dam. The provision of that dam, is by reference to cl 6(a)(iii) of the 1997 Regulation, a "mining purpose". 38These provisions of the mining leases demonstrate that at the time of grant of each lease a "mining purpose" was an activity permitted under that lease. The grant in each case was intended to give effect to the entitlement of the holder of the lease to exercise the right afforded by s 73(1). 39Gold & Copper alleges, by reference to particular (d) of par (21) of its amended pleading that the purposes permitted under the Ridgeway Consent were not activities permitted under ML 1472 and ML 1481 "by the express terms of those leases". A contention in those terms fails to address the provisions of cl 143(2) of Sch 6. The subclause operates not by reference to the express terms of the leases but rather by reference to "the activities permitted under the lease by this Act". As I have earlier demonstrated, s 73(1) of the Mining Act is the provision that authorises the carrying out of mining purposes by the holder of a mining lease granted in respect of a mineral or minerals. 40Apart from relying upon the terms of the mining leases, Gold & Copper seeks to avoid the application of cl 143 of Sch 6 to the leases by an alternative argument founded upon s 73(1). It submits that if a mining purpose is authorised by the grant of each of the mining leases in question, that mining purpose is confined to activities associated with mining for a mineral or minerals conducted within the area of the respective mining leases. In the present case, the mining purpose is not associated with the mining on each of the subject lease areas but rather is associated with the current mining for minerals within the lease area of ML 1449. 41I do not accept that s 73 should be construed in the manner contended for by that submission. While s 73(1)(c) empowers the holder of a lease granted in respect of a mineral or minerals to carry out "on that land" a mining purpose, the legislation does not, in terms or by inference, limit the mining purpose to the mineral or minerals being mined on that land. 42The power to grant a mining lease is found in s 63. Relevantly, s 63(5) provides: "(5) A mining lease may not be granted, in respect of a mining purpose or mining purposes only, unless the decision-maker is satisfied that the mining purpose or mining purposes is or are to be carried out in connection with and in the immediate vicinity of: (a) a mining lease in respect of a mineral or minerals, or (b) a mineral claim, being a mining lease or mineral claim that has been or is proposed to be granted." 43That subsection identifies the nexus that is required to exist between a mining lease for a mining purpose and a mining lease in respect of a mineral or minerals. I see no reason either in text or context for limiting that nexus when the carrying out of a mining purpose is consequential upon the grant of a mining lease by operation of s 73(1). 44In the conduct of substantial mining activities in a single location it must be anticipated that the overall activity of mining and processing of minerals may be the subject of a number of authorities granted under the provisions of the Mining Act. That is the position that pertained to Cadia's mining operations. Indeed, the interrelationship among a number of mining leases is recognised in the conditions found in the schedule of conditions to each of ML 1472 and ML 1481. In the case of ML 1472, Condition 23(a) provides: "The security lodged with the Minister by the lease holder for the purpose of ensuring the fulfilment by the lease holder of his [sic] obligations under Mining Lease Nos. 1405 and 1449 (Act 1992) is extended to apply to this lease." A similar condition is found in ML 1481 with the addition of reference to ML 1472 to the nominated leases under which the provision of joint security obligations are imposed. 45However, as Cadia submitted, even if the mining purpose comprehended by the grant of ML 1472 and ML 1481 pursuant to s 73(1) is confined in the manner submitted by Gold & Copper, that does not deny the operation of cl 143 of Sch 6 in rendering the mining lease compliant with s 65. Applying the provisions of cl 143(2), there was a development consent in force at the time at which each mining lease was granted; the development consent related to land over which each mining lease was granted; that development consent related to land over which each mining lease was granted and the development consent related to an activity permitted under those leases both by reference to the terms of each lease and by the operation of s 73(1). In accordance with cl 143(2), the leases are therefore taken always to have complied with s 65. 46If, contrary to my view, there be any doubt as to the correctness of that conclusion, such doubt is dispelled by cl 143(3). The latter subclause does not operate upon subclause (2) by way of limitation but rather by way of elaboration. Applying the elements of subclause (3) to the present circumstances: (i) the Ridgeway Consent related to a mining purpose, namely the location and maintenance of a conveyor system for minerals across the western portion of ML 1472, the location, maintenance and use of Rodds Creek Dam on the eastern portion of ML 1472 and the operation and maintenance of the Southern Tailings Facility on ML 1481; (ii) those were mining purposes permitted under the two mining leases; (iii) those mining leases were granted in respect of minerals; and (iv) the development consent was not for the mining of minerals on the two lease areas. These elements all being present, subclause (3) engaged the "deeming" provisions of subclause (2) (as Gold & Copper described the latter subclause), with the consequence that the mining leases are taken to comply and always to have complied with s 65. 47Having reached this conclusion, I return to acknowledge the principles earlier identified as being applicable to applications of the kind presently being considered by me. The interpretation of the provisions of the Mining Act, so far as they relate to what I might compendiously refer to as the s 65 issue, and the application of those provisions to the mining leases in question have, as my reasons disclose, been fully argued. It is not apparent that more could or would be said on this issue at the final hearing of proceedings. Those factual matters that are pleaded relevant to the issue have either been agreed or are the subject of tender in the form of the respective mining leases. It is inconceivable that the issue would be further informed by evidence tendered at the final hearing of the proceedings. 48With these matters in mind, I have concluded that it is appropriate to determine the issue beyond identification of an issue that is fairly arguable. 49The amendments to the Mining Act effected by the Mining Amendment (Development Consent) Act make apparent that the claim by Gold & Copper alleging breach of s 65 is not fairly arguable. As a consequence, the paragraphs in the present Points of Claim alleging this ground of breach will be struck out and the amendments sought to be made by adding to the averments in support of this claim will be refused. The relevant considerations issue 50The grant of ML 1481 was the consequence of the Minister's determination of a mining lease application designated MLA 153. Similarly, the grant of ML 1472 was the consequence of determination of a mining lease application designated MLA 154. 51In par (34) relating to MLA 153 and in par (54) relating to MLA 154, Gold & Copper pleads an absence of evidence accompanying each application that demonstrates sufficient minerals within the lease areas sought "to justify a mining operation contrary to [Department of Mineral Resources] established practice and procedure." Each of those paragraphs is supported by particulars identifying documents published by the former Department of Mineral Resources being: (i) The Department's Job Procedure Manual in relation to lease applications (the Manual); (ii) The Joint Ore Reserves Committee Code (the JORC Code); and (iii) The Registered Dealing No. 24 2EL2378 and the Department's Tenement Administration System Register (the TAS Register). However, at the hearing before me, Gold & Copper stated that it no longer sought to rely upon the JORC Code and would seek to amend its Points of Claim accordingly. It also sought to qualify the manner in which it would seek to rely upon the other two documents. 52Neither the amendments to the Points of Claim nor the submissions seek to identify the basis upon which consideration of these documents is mandated by the provisions of the Mining Act or by the manner in which the content of mining lease applications is regulated. As Cadia submitted, matters that may or may not be taken into account when determining an application for a mining lease depend upon the proper construction of the Mining Act, including its subject matter, scope and purpose (R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; 144 CLR 45 at 49; Midcoast Lime Co Pty Ltd v Minister for Primary Industries [2008] NSWSC 331 at [57]. 53No provision of the Mining Act or Regulation made under it was identified by Gold & Copper suggesting that when determining a mining lease application the Minister was bound to have regard to any of the policy documents or records upon which it sought to rely. While any number of matters may be relevant to be considered by a statutory decision maker, it is the statutory scheme under which the decision is being made that will determine matters that must be considered such that if there is a failure to do so, a remedy may sound in proceedings for judicial review (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [73]). 54Accepting these principles, Gold & Copper sought to refine its reliance upon the Manual and the TAS Register. In pars (39) and (59) of the amended Points of Claim, Gold & Copper alleges that the assessment of whether sufficient minerals exist within the area sought in each mining lease application justified the grant of a lease was a relevant consideration in a determination of a mining lease application under the Mining Act. That is a conventional and unexceptional pleading in proceedings for judicial review. Cadia does not object to the amendment to plead that basis of challenge. While maintaining that the essence of the pleading is as formulated in pars (39) and (59) of its Points of Claim, Gold & Copper, as I understand its submission, seeks to identify the Manual and the TAS Register as an aspect of or particulars of the conventional "relevant considerations" claim. 55In the absence of identification of any statutory provision mandating the consideration of those two documents as part of the overall claim, I do not propose to allow the amendment so as to include reference to them. While this may be seen as directed to a particular or particulars of the pleaded claim, to ensure that only the real issues in the proceedings are determined, reference to those documents should be deleted from the proposed amendments. If they are allowed to remain, they potentially give rise to a line of enquiry and potential evidence as to the practices of the Department without any apparent legal significance attaching to that evidence. The inclusion of reference to those documents cannot give rise to any fairly arguable support to the more general contention. The contention must stand upon the proper interpretation of and inferences to be drawn from the statutory scheme reflected in the Mining Act and Regulation. 56I would therefore refuse the amendment reflected in pars (34) to (38) and pars (54) to (58) of the amended Points of Claim. Discretion 57In its submissions, Gold & Copper properly recognised that any order allowing it to amend its Points of Claim involved an exercise of discretion. In exercising that discretion, I am satisfied that allowing the amendments to the extent discussed accords with the dictates of justice. 58Those amendments that I have allowed are not opposed by the respondents and neither of them contend that they are prejudiced by grant of the amendments sought at this point of time. The original hearing dates in February have been vacated by consent of the parties and no further date for hearing has been fixed. Gold & Copper has accepted responsibility for costs thrown away by reason of the amendment; there is no injunction sought to restrain Cadia from continuing its mining operations pending determination of the proceedings and, so I am told, Gold & Copper has agreed to Cadia's request that a sum of money be paid into Court by way of security for costs reflecting the increased costs to Cadia occasioned by the amended Points of Claim. The amount of that security is to be agreed or determined by the Court. Conclusion 59The consequence of my determination is that Gold & Copper has been partially successful in its application to amend its Points of Claim. Those amendments that I allow are, in substance, those to which the respondents do not object, being claims founded upon breach of s 51(2) of the Mining Act; failure to take account of a relevant consideration as qualified in the manner discussed in this judgment, and the claim that the decision to grant the mining lease was manifestly unreasonable. 60The acceptance, in substance, by each respondent that at least some of the amendments to the Points of Claim should be allowed, necessitates the dismissal of the Minister's motion for summary dismissal of the proceedings. Costs 61The Minister acknowledges that the challenge reflected in Gold & Copper's original Points of Claim was directed to the provisions of the Mining Act prior to its amendment by the Mining Amendment (Development Consent) Act. He contends that as no determination is sought or required as to whether that claim would have been sustained, each party should bear its and his own costs up to the date upon which the legislation was amended. 62I have not heard argument as to the costs of the Minister's notice of motion. Without expressing a final view on the matter, there is merit in the approach of the Minister to the costs payable in respect of his notice of motion. 63As the Minister further submits, the costs of Gold & Copper's notice of motion should be each parties costs "in the cause". Again, I see merit in his approach. However, if that order is not accepted by the other parties, the question of costs of the notices of motion will need to be argued. Orders 64For the reasons I have given, the orders I make are: (1)Direct that the parties bring in short minutes of order consistent with these reasons for judgment. (2)Costs may be argued. (3)Exhibits may be returned. ********** Amendments 16 May 2014 - Typo - winning changed to mining Amended paragraphs: 29 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: 16 May 2014