Late by 89 seconds, Fortescue catches a break

Fortescue Metals Group won a Supreme Court decision today over an exploration licence application that had been declined because it was processed seconds after the regulator’s deadline.

The case was heard by Justice Kenneth Martin in November.

Fortescue had electronically applied to extend its licence over an exploration tenement, E47/1393, in March 2019.

After the application, it would fall to the minister for a decision to extend the licence on merit.

But the documents were received by Department of Mines Industry Regulation and Safety just 89 seconds after the 4:30pm deadline for renewal.

It was deemed under regulations to have been received on the next working day, a Monday.

The tenement had been due to expire over the intervening weekend.

In June, Mines Minister Bill Johnston declined to review the application because the submission had been processed after the tenement expired.

But Fortescue’s lawyers argued that under another piece of legislation, the Interpretation Act of 1984, the Saturday deadline should have been extended to the next working day, a Monday.

“FMG thereby contends that E47/1893, by reason of its day of expiry being a Saturday, that the date of its expiry meets the definition of an 'excluded day', under ... the Interpretation Act.

“The consequence is that it was open (to Fortescue) to make application to renew E47/1393 upon the next day that is not an excluded day under the terms of the Interpretation Act. 

“On that basis, FMG's application to renew, even if deemed as being made the following Monday April 1 2019, at 8.30am, would still then be made in time that Monday and so should have been evaluated by the minister on its merits.”

Justice Martin agreed with that interpretation.

“Accepting that the renewal application of Fortescue was lodged electronically and is deemed to have been lodged at 8.30am on Monday April 1 2019 as the next working day it can be seen that this is not ... determinative,” he said.

“This is because E47/1393 ... could be renewed up to the time that it expired at midnight on Saturday March 30 2019. 

“However, Saturday March 30 2019 was an excluded day. 

“Consequently, it was open to (Fortescue) to lodge its renewal application of its exploration licence on the next day that was not an excluded day, namely, on Monday April 1 2019. 

“By the deeming provisions of the mining regulations it was taken to have done so at 8.30am on that day.”

But even after winning the legal battle, Fortescue still has one more hurdle to jump before it gets to retain the tenement.

“My conclusion means simply that FMG's renewal application can be either granted or dismissed on its merits, once so considered by the minister,” Justice Martin said.

Gina Rinehart's Atlas Iron attended the trial as an interested party, reportedly because it was keen to claim the tenement.