GXL ROYALTIES LIMITED V THE MINISTER OF ENERGY FOR NEW ZEALAND AND ORS CA304/2009

GXL ROYALTIES LIMITED V THE MINISTER OF ENERGY FOR NEW ZEALAND AND ORS CA304/2009 19 May 2010IN THE COURT OF APPEAL OF NEW ZEALAND CA304/2009 [2010] NZCA 185BETWEEN GXL ROYALTIES LIMITED Appellant AND THE MINISTER OF ENERGY FOR NEW ZEALAND First Respondent AND SWIFT ENERGY NEW ZEALAND LIMITED, GREYMOUTH GAS KAIMIRO LIMITED, GREYMOUTH GAS PARAHAKI LIMITED, GREYMOUTH GAS TURANGI LIMITED, GREYMOUTH PETROLEUM TURANGI LIMITED AND PETROCHEM LIMITED Second Respondents Hearing: 9 March 2010 Court: Glazebrook, Hammond and Arnold JJ Counsel: A Butler and S P Jerebine for Appellant U R Jagose and J K Gorman for First Respondent J Shackleton for Swift Energy New Zealand Limited M D O'Brien and P Sutherland for the Greymouth companies Judgment: 19 May 2010 at 3.30 pmJUDGMENT OF THE COURT A The appeal is dismissed. B The appellant must pay the costs of the first respondent, the Greymouth companies and Swift Energy New Zealand Limited for a standard appeal on a Band A basis plus usual disbursements. We certify for second counsel.____________________________________________________________________REASONS OF THE COURT(Given by Glazebrook J)Table of ContentsPara NoIntroduction [1]Background [4]The High Court decision [20]Issues on appeal [33]Abuse of power [34]GXL's submissions [34]The respondents' submissions [37]Our assessment [42]Special circumstances [46]GXL's submissions [46]The Minister's submissions [48]Our assessment [50]Breach of natural justice [53]GXL's submissions [53]The respondents' submissions [57]Our assessment [60]Refusal to grant relief [63]GXL's submissions [63]The respondents' submissions [66]Our assessment [67]Events subsequent to the High Court decision [75]Costs in the High Court [76]Result and costs [78]Introduction[1] On 16 July 2008 the Minister of Energy consented to the transfer of Petroleum Exploration Permit (PEP) 38742 by Swift Energy New Zealand Limited (Swift) to four companies in the Greymouth Petroleum Group (Greymouth). Section 41 of the Crown Minerals Act 1991 (CMA) requires the consent of the Minister to the transfer of any PEP or any interest in such a permit.[2] In the High Court, 1 GXL Royalties Limited (GXL) partially succeeded in its review of the Minister's decision to consent to the transfer. GXL was, however, refused a remedy. It appeals against that decision. [3] Before discussing the issues in the appeal we set out the background and summarise the decision of the High Court.Background[4] The permit at issue in this appeal, PEP 38742, was granted in 2002 with a term of five years, expiring on 19 July 2007. It covers an area onshore in North Taranaki. On the northeastern boundary is the area included in Petroleum Mining Permit (PMP) 38161 held by Greymouth. On the southeast boundary of PEP 38742 is PMP 38150 held by the Todd group (Todd). Petroleum is being mined in both those permit areas: by Greymouth from the Turangi well and by Todd from its Mangahewa wells. Both Greymouth and Todd bid when Swift put PEP 38742 up for sale. Greymouth was successful. [5] Under a Royalty Deed, GXL holds a 5 per cent overriding royalty interest in the petroleum produced from a specified part of the permit area of PEP 38742. The transfer by Swift to Greymouth of PEP 38742 required GXL's consent as royalty holder. Before giving consent, GXL was entitled to satisfy itself that Greymouth had the resources, both technical and financial, to use PEP 38742 in a timely and effective way. [6] On 7 May 2008 Swift applied to the Minister for his consent, pursuant to s 41 of the CMA, to transfer its permit interest to Greymouth. The documents that were presented for Ministerial consent included a proposed Deed of Covenant between Swift, Greymouth and GXL (Deed of Covenant). The Deed of Covenant was intended to record GXL's consent to the transfer under cl 7.2 of the Royalty Deed and Greymouth's covenant to be bound by the terms of the Royalty Deed.1 GXL Royalties Ltd v Minister of Energy for New Zealand [2009] NZAR 478 (HC).[7] Swift provided GXL with a copy of the application made to the Minister on 7 May 2008 and, at the same time, sought GXL's consent to transfer its permit interest to Greymouth. GXL refused to give consent on the grounds that Greymouth's financial capability was not established and that GXL had not been provided with evidence of the work programme for the permit. [8] On 9 May 2008 the Ministry of Economic Development (the Ministry) emailed Swift requesting further information with respect to the corporate structure and financial details of the various Greymouth companies which would be taking an interest in the permit and advised that it would be able to accept the application for processing when it received that information. The further information was provided and, on 30 May 2008, the Ministry emailed Swift requesting an executed Deed of Covenant (that is the proposed Deed between Swift, Greymouth and GXL for which Ministerial consent was sought as part of the application of 7 May 2008). On the same day (30 May 2008), Todd acquired GXL. [9] For the purpose of this appeal, the crucial events are on 3 June 2008. At 9.30 am, GXL emailed Swift and Greymouth and the Minister requesting immediate undertakings from Swift and Greymouth that no further steps would be taken to progress the sale and transfer of the permit and also seeking advice from the Minister that no steps would be taken to process the consent application. Absent such undertakings and advice, GXL said that it would issue proceedings to preserve its position. [10] At approximately 12.00 pm, the Minister's solicitors telephoned the solicitors for GXL and advised that the Minister anticipated providing a formal response to GXL's letter of that morning by 3.00 pm at the latest. At approximately 3.00 pm, the solicitors for GXL were advised by telephone that the Ministry was aware of the need for GXL's consent. [11] At 3.40 pm, GXL emailed seeking confirmation from the Ministry that it would not take any further steps in the consent process, and that no consent would be granted, without the consent of GXL:Dear Michael [Anastasiadis, Crown Minerals] As discussed, attached is the Royalty Deed. You will see from Clause 7.2 that GXL's consent is required in this situation. That consent has not been provided. I would be most grateful for your confirmation of our discussion just now, that no further steps will be taken in the consent process (and no consent will be granted) by the Ministry without evidence of the consent of GXL (as required). The parties can then follow the process provided in the Royalty Deed. You advised that MED (and in particular Mr Andrew Morris, who is dealing the application for consent) was aware of the requirement for this consent and had contacted Swift and others regarding it. I would be most grateful if you could provide your confirmation before your meeting at 4 pm. Kind regards, Michael Heron [Russell McVeagh][12] At 3.49 pm, the Ministry emailed GXL saying that the Crown had advised Greymouth that the application could not be processed until the consent of GXL had been procured (the 3 June email):Dear Michael [Heron] I confirm our telephone conversation of this afternoon that the Crown is aware of the requirement for GXL Royalties Ltd (formerly GeoSphere Exploration Ltd) to consent to the proposed transfer of Swift's interest in PEP 38742 to Greymouth Petroleum Acquisition Co Ltd. Until the consent of GXL Royalties Ltd has been procured, the Crown has advised Greymouth Petroleum Acquisition Co Ltd that the application cannot be processed. Regards Michael Anastasiadis[13] At approximately 4.18 pm, GXL instructed its solicitors to put the injunction application on hold. At 4.27 pm, GXL forwarded the Ministry's email of 3.49 pm to Swift seeking confirmation that Swift's position was the same as the Ministry's. At 9.44 pm, Swift replied that it believed that the Deed of Covenant between GXL and Greymouth had to be submitted to the Minister for his consent and that Swift had been working on that basis. Swift continued that it looked forward to receipt of GXL's consent so that the application could be progressed.[14] Correspondence between Greymouth and GXL followed, in the course of which GXL maintained that it had not been provided with sufficient information about Greymouth's financial capability. [15] On 17 June 2008 a meeting was held at the Ministry with Swift's solicitor, Mr Rabindran, and Greymouth's solicitor, Mr O'Brien. Mr Anastasiadis from the Ministry deposed that, at the meeting, Mr O'Brien suggested that Greymouth could bind itself to the Royalty Deed by way of a deed poll. The Ministry requested a legal opinion to that effect. [16] On 19 June 2008 Swift submitted to the Minister a revised application for the transfer of PEP 38742. That application was accompanied by a deed of covenant executed as a deed poll, under which Greymouth covenanted, in favour of GXL and Swift, to be bound by all the provisions of the Royalty Deed. GXL was not advised of the revised application. Swift also sent the requested legal opinion and, on 25 June 2008, the solicitors for Greymouth confirmed their support for that opinion. [17] A memorandum 2 relating to the permit transfer was prepared by Ministry staff, referencing legal opinions and recommending Ministerial consent. The memorandum was provided on 16 July 2008 to Mr Kilby, who is the Group Manager of Crown Minerals holding delegated power to grant Ministerial consent. Consent to the transfer was given on that date. [18] GXL became aware on 29 July 2008 that consent had been granted on and issued judicial review proceedings on 5 August 2008. On 12 August 2008 interim relief was granted by Miller J in the form of a declaration that the Crown ought not to take any further action consequential on the granting of consent to the transfer of the permit. 3 On 13 August 2008 separate proceedings were initiated by GXL against Swift and Greymouth claiming breach of the Royalty Deed and consequential relief. The hearing in the High Court of the substantive review proceedings was on 3 September 2008, with judgment being handed down on 30 April 2009.2 The bulk of the memorandum is set out in GXL Royalties Ltd v Minister of Energy for New Zealand [2009] NZAR 478 (HC) at [35].3 GXL Royalties Ltd v Minister of Energy for New Zealand HC Wellington CIV 2008-485-1720, 12 August 2008.[19] Meanwhile, on 25 August 2008, Swift had completed the transfer of its interest in the permit to Greymouth. On 26 August 2008 Greymouth released a press statement that it had flowed first gas from its Kowhai well operations programme in the permit area. The Minister, in December 2009, exchanged the exploration permit for a mining permit. Greymouth has since constructed a hydrocarbons processing plant, commissioned gas export facilities and constructed export pipelines.The High Court decision[20] In the High Court, GXL sought a review of the Minister's decision to consent on three grounds: (a) Abuse of power. This was on the basis that either: (i) The assurance or undertaking provided by the Minister in the 3 June email (set out at [12] above) gave rise to a legitimate expectation that the application for transfer would not be processed without GXL's consent; or (ii) At the very least the assurance or undertaking gave rise to a duty to consult GXL before the Crown acted contrary to the assurance or undertaking previously given to GXL. (b) Failure to take into account special circumstances or relevant considerations. (c) Breach of duty to consult. [21] On the first ground, Wild J noted that what was asserted by GXL was abuse of process and not power. He rejected the submission that the 3 June email gave rise to a legitimate expectation that the consent would not be granted until GXL had consented to the transfer. While acknowledging what might be a trend to adopt theEnglish position on legitimate expectation,4 Wild J held that New Zealand law still does not entertain the contention that there can be a legitimate expectation of a substantive outcome. He considered the current state of New Zealand law to be as Randerson J stated in New Zealand Association for Migration and Investments Incorporated v Attorney-General.5[22] Although this finding was challenged in the notice of appeal, it was not the subject of any written or oral argument and we treat that ground of appeal as having been abandoned. It will be clear in any event from what we say below6 that we consider Wild J was correct to hold that the 3 June email cannot provide GXL with a substantive outcome. [23] As to the allegation that the 3 June email gave rise to a duty to consult GXL before acting contrary to the advice in the email, the Judge held that, on a fair reading, GXL was entitled to interpret and rely on the email as the Crown advising GXL that Swift's application would not be processed until GXL had consented to the transfer. Wild J held that the Minister's advice (or representation) gave GXL a legitimate expectation that the Minister would advise Todd if he proposed consenting to an application for transfer by Swift, to which GXL had not consented. Wild J held that GXL had established reliance on the Minister's advice. This ground of review therefore succeeded (and there is no cross-appeal against that finding). [24] The second ground of review was that the 3 June email amounted to a "special circumstance", which the Minister ought to have considered and which should have operated against the Minister granting consent. The term "special circumstance" is drawn from s 41(3) of the CMA which provides:(3) The Minister shall consent to [the transfer of a permit] on such conditions as he or she thinks fit, unless in his or her opinion special circumstances exist. Before making a decision in respect of any such agreement, the Minister may require the production of such information relating to the agreement as the Minister considers necessary or desirable.4 As set out in R v North and East Devon Health Authority, ex parte Coughlan [2000] 2 WLR 622 (CA) at [57] and confirmed in R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115 (CA).5 New Zealand Association for Migration and Investments Incorporated v Attorney-General[2006] NZAR 45 (HC) at [159].6 At [42] - [45].[25] GXL's submission was that there were special circumstances because the Minister knew that GXL's consent to the transfer was required under the Royalty Deed and also knew that GXL had not consented. Further, the Minister had advised that he would not process Swift's application until GXL had consented and knew GXL would rely on this advice. GXL also submitted that the coincidence of interest between GXL's interest as royalty holder and the Minister's interest under the Crown Minerals regime in Greymouth's financial capability to meet the permit requirements reinforced the existence of special circumstances. [26] Wild J held that protecting a private contractual right is not a proper concern for the Minister and that it could not therefore have constituted a "special circumstance" in terms of s 41(3) of the CMA, even when combined with the other factors pointed to by GXL. The Judge considered that, if the position were otherwise, a party could then use a proceeding such as this to obtain leverage in a private contractual dispute, which is what the Minister said that GXL is trying to do in this case. The fact that the private contractual right asserted corresponds with the Minister's proper concerns under the Minerals Programme For Petroleum (the Minerals Programme) 7 was, in the Judge's view, nothing more than an irrelevant coincidence. This ground of review failed and GXL appeals against that finding. [27] Despite GXL having succeeded on one of the grounds of review, Wild J refused relief on the basis that it would not be of any practical effect as he could not see any basis on which the Minister would reach a different decision second time around. Wild J held that, if the consent decision was quashed and the Minister directed to make it again, then GXL's commercial rights could have no bearing on it. [28] GXL had contended that the Minister would have access to further information if required to make the decision again. In particular, the Minister would be provided with the advice given to GXL by Mr Lucas of PriceWaterhouseCoopers in his letter dated 12 September 2008. In that letter, Mr Lucas opined that the financial information provided by Greymouth to date was not sufficient for GXL to come to a view on whether it should consent to a transfer. The Judge noted that7 The Judge referred particularly to clause 5.4.32 of the Minerals Programme, which provides a non-exhaustive list of matters the Minister will take into account when considering application for the transfer of a permit.another view of Mr Lucas' report is that it is an elaborate justification of a request for information that went well beyond what GXL needed to be satisfied about Greymouth's financial capability. [29] Since it is an issue in GXL's separate proceeding, the Judge did not think it appropriate to express a concluded view as to the adequacy of the financial information about the Greymouth companies that was provided to GXL (and copied to the Minister) in the letter dated 9 June 2008 from Greymouth's auditors, Ernst & Young. He tended to the view that, coupled with GXL's background knowledge about Greymouth, that information ought to have satisfied GXL. The Judge considered it not without significance that it satisfied the Minister. He accepted that GXL is entitled to make the point that what satisfied the Minister may not have satisfied GXL. However, Wild J noted that the effect of granting the relief sought by GXL would be to constrain the Minister to GXL's view of the adequacy of the financial information provided by Greymouth. In his view, that could not be right. [30] GXL also contended that, if the consent is quashed and Swift needs to apply again for consent, then GXL would have the opportunity to file injunction proceedings preventing Swift from making a third application until GXL has consented to the transfer. In the Judge's view, GXL would have had no real prospect of obtaining an injunction because the Judge could not conceive a court attempting to undo the sale of the permit interest by Swift to Greymouth, which settled on 25 August 2008. In any event, the Judge considered that damages would be an adequate remedy for GXL. [31] Wild J also considered that GXL faced a fatal hurdle in that it did not seek injunctive relief against Swift and Greymouth when both declined to give GXL the undertakings it sought from them in its letter of 3 June 2008. GXL had attempted to overcome this by asserting that it did not become aware until 29 July 2008 that the Minister had granted consent, and thought it was then too late to seek an injunction. This, in the Judge's view, did not explain or justify GXL's failure to seek injunctive relief immediately following the refusal of Swift and Greymouth to give the undertakings it sought on 3 June 2008.[32] Turning to costs, the Judge held that GXL had essentially failed in the proceeding. Further, he considered that the proceeding was largely a "spoiling" tactic by GXL. In those circumstances, the Judge ordered GXL to pay the costs of each of the Minister, Swift and Greymouth, on a band 2B basis, but with allowance to each of those three parties for second counsel.Issues on appeal[33] The issues are: (a) Did the Judge err by dismissing the ground for review on the basis of abuse of power? (b) Did the Judge err in holding that there had been no failure to take into account "special circumstances"? (c) Did the Judge breach principles of natural justice by making incorrect and inappropriate findings that were not in issue in the proceeding and against which GXL was not given an opportunity to be heard? (d) Did the Judge err by declining to grant relief in respect of the ground of judicial review on which GXL had succeeded? (e) If so, do the events since the High Court decision mean that the relief should not be granted in any event? (f) Did the Judge err by making costs orders against GXL?Abuse of powerGXL's submissions[34] GXL's first submission is that Wild J was wrong to reject its submission that there had been an abuse of power by the Minister. Mr Butler, for GXL, points outthat it was accepted by Casey J in Brierley Investments Ltd v Bouzaid that breach of a legitimate expectation as to process can constitute unfairness amounting to an abuse of power. 8[35] In Mr Butler's submission, it is plain that the Minister's decision to consent to the revised application was an abuse of power. He submits that GXL was entitled to interpret, and did interpret, the assurance in the 3 June email as meaning that the Minister would not process any application (current, revised or new) by Swift for transfer of the permit until GXL's consent had been provided, without first consulting with GXL if a different course of conduct were to be adopted. GXL relied upon that assurance not to issue proceedings against Swift and Greymouth. Had the assurance not been forthcoming, proceedings would have issued against them on 3 June 2008. [36] Mr Butler submits that the Minister, Swift and Greymouth were all aware of the Minister's assurance and GXL's reliance upon it. Contrary to the legitimate expectation that GXL held, the Minister did not first consult with it prior to processing the revised application. Instead, the Minister entered into discussions with Swift and Greymouth designed to undermine the expectation that it had created, all without involving GXL. This, it is submitted, is not proper behaviour becoming of a public body. The Minister in this situation abused his power and should be required to begin the process again and to act properly and in good faith.The respondents' submissions[37] Ms Jagose, for the Minister, submits that GXL has in this appeal (but not in the High Court) elevated the impugned conduct of the Minister from a procedural defect to one of impropriety. In her submission, such a shift in argument should not be permitted on appeal where such allegations were expressly disavowed in the High Court (and not pleaded). She submits in any event that the facts do not support an allegation of bad faith or other impropriety.8 Brierley Investments Ltd v Bouzaid [1993] 3 NZLR 655 (CA) at 670.[38] In Ms Jagose's submission, Mr Heron and Mr Anastasiadis talked "past each other". Mr Heron was speaking broadly about GXL's contractual rights and Mr Anastasiadis was speaking about the process for the particular application received (which included a deed of covenant which required GXL's signature). The advice (in Mr Anastasiadis' mind) did not apply to any revised application. [39] Ms Jagose submits that GXL is now attempting to use the broad concept of abuse of power to turn its legitimate expectation as to process into a substantive outcome (as originally pleaded). The Minister submits that GXL's approach to the statutory framework is wrong. It is accepted that the Minister should have, as Wild J found, notified GXL that the process advice was no longer valid. That was the limit of the Minister's responsibility. [40] Mr O'Brien, for Greymouth, submits that, as a royalty holder, GXL is not a party to the permit and has no proprietary or other interest in the permit. Its interest is limited to a right to payment in the event of petroleum production in excess of cost. It is not a necessary party to any application under s 41 for a permit transfer and there is no indication in the scheme of the CMA or the Minerals Programme that the Minister should entertain its objection to a transfer. [41] Mr O'Brien further submits that the Crown does not publish receipt of a s 41 application and treats such applications as confidential. It would thus not normally have informed GXL of the revised application.Our assessment[42] We accept the respondents' submissions on this issue. It is not appropriate to raise allegations of improper conduct in this Court when they were not specifically before the High Court. In any event, we accept the submission that there was no failure on the part of the Minister, other than that found by Wild J. The extent of Wild J's finding was that GXL should have been informed before the Minister departed from the position outlined in the 3 June email.[43] We agree with the Judge's assessment. It was important that advice was given of any departure from the position heralded in the 3 June email, because that advice was given in circumstances where the Minister knew that proceedings were in contemplation. There is, however, no wider duty to consult with royalty holders (and the 3 June email cannot create any such duty). [44] GXL, as a mere royalty holder, does not have the right to intervene in the s 41 application process and the 3 June email (which is limited to process) cannot give it such a substantive right. To hold otherwise would undermine the CMA regime, effectively giving GXL a veto over the consent process, even if the Minister was satisfied that the consent should be given under s 41 of the CMA. [45] Even if the failure to notify GXL of the change in position from the 3 June email can be elevated to an allegation of abuse of power in the sense set out inBrierley, this adds nothing to GXL's case. It cannot elevate a process requirement into a substantive outcome.Special circumstancesGXL's submissions[46] GXL submits that Wild J was wrong not to characterise the assurance in the 3 June email as a "special circumstance" for the purposes of s 41(3) of the CMA. In GXL's submission, the Minister ought to have directed himself that any revised application could only be granted after GXL had been informed of the revised application and sufficient time had been given for its views to be obtained and considered. [47] In GXL's submission, the purpose of the phrase "special circumstances" in s 41(3) is to provide the Minister with the ability to have regard to a range of matters, including private law contract matters if pertinent. The Minister is not limited to those matters set out in the Minerals Programme. This is particularly the casebecause the interests of GXL and the Crown coincide in that both are interested in Greymouth's financial capability.The Minister's submissions[48] Ms Jagose submits that the scheme of the CMA does not allow the Minister to consider matters outside those that are directly relevant to substantive Crown Minerals management matters. While the scope of the CMA is broad, its focus is on efficient use of the resource and a fair financial return to the Crown. The Minister accepts that the advice it gave to GXL as to intended process is relevant to legitimate expectation and good public administration but submits that it should not be elevated to the status of a relevant factor under the regulatory regime. [49] Ms Jagose submits that s 41 of the CMA imposes a statutory duty on the Minister to consent to applications, unless "special circumstances" exist. She submits that it cannot have been Parliament's intention that a non-party to a permit transfer could hold up the Minister's process of vetting a prospective new permit holder and deciding whether to consent to the transfer while the non-party seeks to enforce a contractual entitlement. Such a result would run counter to the statutory scheme. It would impede the Minister giving effect to the purpose of the CMA: the efficient exploitation and use of the resource.Our assessment[50] We accept Mr Butler's submission that the Minister is not limited to the consideration of those matters set out in the Minerals Programme. However, under the CMA, the Minister is confined to the consideration of Crown Minerals management matters (although a Minister could probably also consider matters more generally engaging the national interest). This means that the Minister could take into account the commercial dispute between GXL and Greymouth and Swift, but only to the extent that it might impinge on the statutory purposes of efficient use of the resource and of ensuring the financial return to the Crown.[51] The Minister was obliged to notify GXL if he intended departing from the position in the 3 June email but, once that was done, the effect of the email would have been spent. The failure to advise of the change in position cannot inhibit the Minister from acting in accordance with the statutory purpose and the mandatory terms of s 41. Nor can it insert GXL into the s 41 process where otherwise it would have no place. [52] We also agree with Wild J that the fact that GXL's interests to a degree coincide with those of the Minister is not relevant. Under the CMA, the decision on the statutory criteria is one for the Minister and not GXL.Breach of natural justiceGXL's submissions[53] GXL complains about a number of comments made by Wild J in the course of his judgment it says are based on erroneous findings. The first are at [2] and [6] of the judgment:[2] In reality, this proceeding is yet another power-play through the Court between Todd Energy and Greymouth Petroleum. The two are "fierce competitors" in the New Zealand oil and gas industry. That was Mr O'Brien's description in his submissions. I will refer to GXL as "Todd", because Todd has owned GXL since 30 May 2008, and that ownership best explains what this case is all about. ... [6] The evidence indicates to me that [GXL] is using this royalty interest to try to prevent, or at least to obstruct and delay, Greymouth's use of PEP 38742. That is what is driving this proceeding, and it is not a promising basis for it.[54] GXL alleges that the next erroneous finding was:[79] ... another view of Mr Lucas' report is that it is an elaborate justification of a request for information that went well beyond what Todd needed to be satisfied about Greymouth's financial capability. ... ...[89] Since it is an issue in Todd's separate proceeding, I should not express a concluded view as to the adequacy of the financial information about the Greymouth companies that was provided to Todd in the letter dated 9 June from Greymouth's auditors, Ernst & Young. I tend to the view that, coupled with Todd's background knowledge about Greymouth, that information ought to have satisfied Todd. ...[55] GXL also objects to the comment by Wild J at [95] of his judgment that the proceeding is largely a "spoiling" tactic by Todd. It is alleged that all of these comments were made without affording GXL sufficient opportunity to be heard and that the comments improperly influenced the decision to decline relief. 9[56] Further, GXL submits that Wild J did not hear from any experts as to the sufficiency or otherwise of the financial information provided to GXL and, in spite of noting that the matter was at issue in a separate proceeding, wrongly criticised GXL's requests for further information.The respondents' submissions[57] In the respondents' submission, GXL's allegation that it did not have sufficient opportunity to be heard on these matters is without merit. They were raised in the proceeding from the very start. Miller J, in his decision granting interim relief, records the Minister's submission that GXL was motivated by the commercial dispute. The Minister also raised GXL's commercial motives in his statement of defence as a positive defence. In an affidavit of 27 August 2008, filed by Greymouth, it was made clear that Greymouth saw GXL, owned by Todd, as acting primarily to impede Greymouth's acquisition of Swift's interest in the permit for which Todd, like Greymouth, had been a bidder. The evidence and submissions before Wild J also raised these issues. [58] GXL addressed these issues in the High Court and took the opportunity to make further submissions and provide further evidence on these issues on two occasions following the High Court hearing. The only thing that GXL did not get was a further hearing but, while it initially asked for one, in the end it signalled that this was not required.9 As was the case in Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008] 1 NZLR 13 at [25].[59] In the respondents' submission, both GXL's conduct and underlying motivations for bringing the review application are relevant to the question of whether relief should be granted. 10 Likewise, whether or not there is a sound basis for GXL to refuse the consent to the transfer, and the likelihood of that refusal sounding in a remedy, are also relevant considerations in the decision as to relief.Our assessment[60] We accept the respondents' submissions. The matters complained of were squarely before the High Court and were clearly relevant to the question of relief and costs. GXL had an appropriate opportunity to respond to the allegations. [61] We do not accept that it was illegitimate for Wild J to have regard to GXL's prospects of success in its separate action. Obviously Wild J could not come to a concluded view (and did not purport to do so) and any view would not be binding but it was a relevant consideration for relief purposes. [62] We have not been asked (and do not attempt) to assess whether the Judge's comments about GXL's motives in pursuing the application for judicial review were justified. We have in the next section examined the question of relief without recourse to those comments.Refusal to grant reliefGXL's submissions[63] Mr Butler submits that the fundamental starting point is that, where grounds for granting judicial review are made out, "there must be extremely strong reasons to decline to grant relief". He refers in this regard to Air Nelson Ltd v Minister of Transport11 where this Court observed:10 Maddever v Umawera School Board of Trustees [1993] 2 NZLR 478 (HC) and Naden v Judicial Committee of the Auckland Racing Club (Inc) [1995] 1 NZLR 307 (CA).11 Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139.[59] Public law remedies are discretionary. In considering whether to exercise its discretion not to quash an unlawful decision or grant another remedy, the court can take into account the needs of good administration, any delay or other disentitling conduct of the claimant, the effect on third parties, the commercial community or industry, and the utility of granting a remedy. [60] Nevertheless, there must be extremely strong reasons to decline to grant relief. For example, in Berkeley v Secretary of State for the Environment [2001] 2 AC 603 (HL), Lord Bingham described the discretion as being "very narrow" (at p 608), whereas Lord Hoffmann said cases in which relief would be declined were "exceptional" (at p 616).[64] Mr Butler also submits that Wild J failed to recognise that, on a reconsideration, Mr Kilby (or another decision maker) would have to take account of the impact that the assurance and its breach had on GXL. GXL submits that, on reconsideration, Mr Kilby (or another decision maker) would have to: (a) Have regard to the finding that GXL's legitimate expectation had been breached. (b) Consider the impact that the assurance has on the exercise of his s 41(3) powers. Does it require declinature until such time as GXL's proceedings against Swift and Greymouth are determined? Should conditional consent be granted? Should the consent application be deferred? (c) Determine that, in light of the prejudice to GXL's interests which his initial decision has had, it would be improper for him to consent to the transfer until such time as GXL's proceedings against Swift and Greymouth are resolved. [65] Mr Butler further submits that Wild J was wrong to hold that the sale to Greymouth could not be unwound. In Mr Butler's submission, the Judge was also wrong to find that damages would be an adequate remedy for GXL. In addition, Wild J should not have taken into account its failure to issue proceedings and seek interim relief against Swift and Greymouth to stop the permit transfer as it did not do so because of the Minister's assurance.The respondents' submissions[66] The respondents all support Wild J's decision not to grant relief essentially for the same reasons he gave.Our assessment[67] It would be rare for a court to refuse relief where an error of law was involved, including where relevant considerations had been missed or irrelevant considerations had been taken into account. The same applies in a case which involves an irrational decision. However, this case involves a process issue only and one which merely involved a failure to advise of a change of position. There was no wider duty for the Minister to consult with GXL. [68] We reject the submission that the Minister, if required to make his decision again, would have to take account of the 3 June email. As noted above at [50], the decision would be taken having regard only to matters related to the statutory purpose and to Crown Minerals management matters. [69] We also reject the submission that the Minister should defer consent until the proceedings between GXL and Swift and Greymouth are determined. We accept the respondents' submission that it would not have been rational for the Minister to withhold s 41 consent until GXL's proceedings against Swift and Greymouth were concluded, when the likelihood was that those proceedings could take several years to conclude, during which time the duration of the exploration permit would be moving towards expiry with no exploration occurring. Exploration permits are of limited duration – at most ten years – and the first five year period of this permit had expired in July 2007. Delaying the decision until the outcome of the GXL proceedings against Swift and Greymouth would subvert the Crown's, and the public's, interest in the minerals regime to a process over which the Minister could not have any control, while leaving the permit barren of any activity. [70] GXL submits that the Minister, if required to make the decision again, would have regard to Mr Lucas' letter outlining the further information that he should havehad before consenting to the transfer. This argument suffers from the flaw that it has never been contended in these proceedings that the Minister made his decision on insufficient information. We note that the Minister had before him the financial information provided by Greymouth with regard to the transfer application but also had knowledge of Greymouth arising out of the other permits the Greymouth group held. [71] Further, we accept Greymouth's submission that the Minister was well aware of GXL's assertions or concerns about Greymouth's financial position. He had been copied into correspondence between the parties from 3 June 2008 which dealt with that issue. As Greymouth notes, it would seem that the Minister did not agree with the position taken by GXL and it is clear that, under the CMA, the decision was one for the Minister to take and not GXL. [72] While the Minister would no doubt take into account any further material placed before him by GXL, we have not been pointed to any material suggesting that Greymouth did not have the financial capability to work the field.12 Indeed, the fact that it has done so would tend to suggest that it was so capable. 13 We accept Greymouth's submission that the Minister would, in any renewed decision making process, have before him: (a) The audited results for the particular Greymouth companies in question showing results to 31 December 2007, including total equity of $36.97 million excluding any allowance for known petroleum reserves; (b) Updated consistent information to 30 June 2008 showing equity of $47.7 million; (c) The McDouall Stuart discounted cash flow valuation of the Turangi field as at August 2008 of $404 million.12 We understand that this is a contention in the separate proceedings, discussed above at [18] against Greymouth and Swift and presumably evidence to that effect will be led by GXL in those proceedings. That evidence was not, however, before us.13 See at [19] above.[73] We also agree with Greymouth's submission that it is relevant that at the time of the High Court judgment: (a) The Minister had approved the Greymouth companies as permit holders in relation to four existing petroleum expiration permits, one petroleum mining licence and five petroleum mining permits; (b) The particular Greymouth companies taking the Swift interests had been approved as permit holders in respect of the adjacent Turangi petroleum exploration permit and the subsequent mining permit had been granted following considerable exploration success in the Turangi petroleum exploration permit; (c) Greymouth ranked second amongst New Zealand owned, privately held, petroleum production companies when measured in barrels of oil equivalents produced per day (the largest being a Todd Corporation subsidiary) and in the top ten of New Zealand and foreign owned oil production companies with New Zealand oil and gas production; (d) Greymouth employed or engaged approximately 150 personnel, operated all of its own permit interests and conducted its own wellsite operations and engineering services; (e) Greymouth included service and operating companies involved in drilling services (Bonus Drilling) environmental services (GMP environmental) and power generation (Greymouth Power). [74] Finally, we are not convinced that Wild J was wrong to have regard to the fact that GXL chose not to issue proceedings and apply for interim relief after the 3 June email, despite not having received the undertakings from Swift and Greymouth it sought (and we accept the respondents' submission that Swift did not give an undertaking). We are also not convinced that Wild J was wrong to take into account that GXL failed to seek interim relief against Greymouth and Swift in theseproceedings after the Minister had given his consent. We also note that GXL did not apply for a stay of Wild J's judgment pending appeal.Events subsequent to the High Court decision[75] We accept the respondents' submission that, since the High Court decision, the situation has changed significantly, further telling against any relief being granted. The permit has been transferred to Greymouth and GXL's lack of consent under its contract with Swift is the subject of separate litigation. The Minister has exchanged the exploration permit for a mining permit. Greymouth is working that permit and paying royalties to the Crown.Costs in the High Court[76] We accept the Minister's submission that, in terms of GXL's pleading and the relief sought, it was unsuccessful in the proceedings. In light of the relative success of the parties, the costs orders made were available to Wild J.Result and costs[77] The appeal is dismissed. [78] The appellant must pay the first respondent and each of Greymouth and Swift, costs for a standard appeal on a Band A basis plus usual disbursements. We certify for second counsel.Solicitors: Russell McVeagh, Wellington for Appellant Crown Law Office, Wellington for First Respondent Simpson Grierson, Wellington for Swift Energy New Zealand Limited Bell Gully, Wellington for the Greymouth companies