In this matter, Barker J dismissed the application of the State of Western Australia seeking leave to appeal the dismissal of their application for the summary dismissal of the primary proceeding, WAD341/2017.
The applicant in WAD341/2017, Buurabalayji Thalanyji Aboriginal Corporation (BTAC), seeks declarations and damages against the respondents, Onslow Salt Pty Ltd and the State of Western Australia for the removal of 10 million cubic metres of fill from the salt mining area, which it argues was not permitted under the mining lease. Both Onslow Salt and the State applied for summary dismissal of the claims on the basis that none had a reasonable prospect of success at trial. The primary judge dismissed each summary judgment application: see Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978. The State sought leave to appeal from the primary judge’s decision on the basis that the judge failed to regard certain supplementary submissions filed by the State on 11 May 2018 and one of the matters covered by the State’s earlier written submissions filed 16 March 2018.
The State’s 11 May 2018 submissions were filed three days before the hearing of the summary judgment applications, which had been filed without leave. At the hearing BTAC opposed leave being granted to the State to rely on the affidavit filed on 10 May 2018 (also without leave) of Mr Edward Clarence Indran Fearis, a solicitor in the State Solicitor’s Office and the related supplementary submissions. The primary judge reserved his decision as to whether leave would be granted but the hearing proceeded on the basis that oral submissions in relation to the matters covered by the affidavit and the supplementary submissions should be made in the event that leave was ultimately granted.
The parties agreed that in relation to an application for leave to appeal from an interlocutory judgment the Court must consider whether, in all the circumstances of the case, the impugned decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court, and whether substantial injustice would result if leave were refused. In the case of the exercise of a discretion, sufficient doubt will not be found unless the decision of the primary judge contained the error of, amongst other things, failing to take into account some material consideration: House v The King (1936) 55 CLR 499 at 505.
Grounds for leave to appeal
Section 85 Mining Act 1978 (WA)
The State submitted that the primary Judge erred in law by failing to address, and by failing to uphold, its case that the extraction of material, from within both the area of a mining lease held by Onslow Salt and the native title area of the Thalanyji people, was lawful by reason of section 85 of the Mining Act 1978 (WA), and as a consequence erred by failing to rule that BTAC’s claim of tortious conspiracy by the State and Onslow Salt has no reasonable prospects of success.
The State contended that BTAC’s claim as pleaded in the Substituted Statement of Claim, relies entirely on the contention that the mining of rocks, sand, gravel and soil by Chevron, for Onslow Salt, in 2012 was not lawful because approval by the Minister for State Development of the additional proposal submitted on 18 January 2012 under the State Agreement was flawed and no other source of validation existed. Counsel for the State argued that the lawfulness of mining for minerals other than evaporites by Chevron, for Onslow Salt, flows from s 85(1)(b) and s 85(2)(b) of the Mining Act.
The State submits that the primary judge did not refer to s 85 of the Mining Act, save for brief comments at [24]-[25] of the reasons for decision. In circumstances where the State says oral submissions on these matters occupied a considerable part of the summary judgment hearing, the omission should be considered significant such that the Court on an appeal would infer that the primary judge did not assess the State’s arguments and the relevant law.
Barker J rejected the State’s contention, holding that the trial judge expressly concluded at [25] that ‘BTAC’s claim – which included the contention that “Onslow Salt needed (but did not have) the rights granted by a mining lease under s 85(1) of the Mining Act in order to mine the fill material” – was arguable.’ His Honour considered it ‘abundantly clear’ that the primary judge did consider that question and the judge’s conclusion that BTAC’s claim was arguable cannot be attacked on House v The King grounds as it evidently contains a real question of law or fact that should be decided at trial.
Section 24MD(6B) of the Native Title Act 1993 (Cth)
The State contended that the primary Judge erred in law by failing to address, and by failing to uphold, the State’s case that BTAC’s claim for damages for the loss of an opportunity to consult and object pursuant to section 24MD(6B) of the Native Title Act 1993 (Cth) (NTA) was unsustainable because section 24MD(6B) did not apply, and as a consequence erred by failing to rule that BTAC’s claim of damages against the State for that lost opportunity has no reasonable prospects of success.
In its statement of claim, BTAC contended that because the approval of the additional proposal by the Minister varied a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining, s 24MD(6B)(b) of the NTA applied so as to require consultation with, and allow objection by, BTAC, and compensation is claimable under Div 5 of Pt 2 of the NTA.
The State contended that performance of the contract as pleaded (by which Onslow Salt engaged Chevron to undertake excavation of the materials for the purposes pleaded at [28.1] and [38] of the statement of claim) does not fall within the definition of ‘mining’ in the NTA. The definition of ‘mining’ in the NTA excludes the removal of sand, gravel, rocks or soil for use untreated as construction material: s 253. As a consequence, the approval of the additional proposal could not have constituted a variation of a right to ‘mine’ for the purposes of the NTA, and BTAC has not pleaded an arguable basis for the application of s 24MD(6B)(b).
BTAC submits that the primary judge expressed clear and cogent reasons for finding that BTAC’s primary case on the topic of judicial review of the Minister’s approval was not appropriate for summary dismissal. BTAC says that the primary judge observed that BTAC contended that the Minister’s approval of the additional proposal was void (at [6](a)) but alternatively, if the Minister’s Approval was not void, it was a future act in respect of which BTAC has the rights provided for by s 24MD(6B) of the NTA and BTAC has a right to compensation pursuant to s 24MD(3) of the NTA: [6](f).
On the question of no substantial injustice, BTAC submitted the State has again not demonstrated that it would suffer any substantial injustice should its summary dismissal application be refused and, rather, it is BTAC that would suffer if it was shut out from litigating this part of its claim.
Conclusion
Barker J found for the reasons advanced in the submissions of BTAC, that this is not a case where the primary judge has simply failed to regard and give consideration to grounds advanced by a party for the making of orders that it seek. His Honour found that the primary judge considered, in relation to all the claims being advanced in the pleadings against both Onslow Salt and the State, that the claims being advanced were novel as well as complex, both as to facts and law. The primary judge was satisfied that the mining authorised by the relevant mining lease was not a summary judgment point, but one best left to a trial to be considered in the light of all the facts and circumstances and legal argument.
Having regard to the principles of House v The King, Barker J did not consider that it has been demonstrated that the primary judge has committed any appellable error in so deciding and refused leave to appeal.