Martin v Minister for Resources and Energy

[2012] NSWLEC 241

Land and Environment Court

New South Wales

Medium Neutral Citation:

Martin v Minister for Resources and Energy [2012] NSWLEC 241

Hearing dates:

26 October 2012

Decision date:

26 October 2012

Jurisdiction:

Class 8

Before:

Lloyd AJ

Decision:

1. The summons is dismissed.

2. There will be no order as to costs.

3. The exhibit may be returned.

Catchwords:

JUDICIAL REVIEW - exploration licence under Mining Act 1992 - licence cancelled by proponent - validity of cancelled licence irrelevant - whether State in contempt - no contempt established - declaratory relief refused - no order as to costs

Legislation Cited:

Mining Act 1992 s 125

Cases Cited:

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Minister for Immigration and Multicultural Affairs v Ozmanian [1996] FCA 1017; (1996) 71 FCR 1
Gardner v Dairy Industry Authority of NSW (1977) 52 ALJR 180
Jardin v Metcash Ltd [2011] NSWCA 409; (2011) 285 ALR 677
Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation (1977) 1 NSWLR 43
Martin v The State of New South Wales [2012] NSWLEC 182
Mutual Acceptance Ltd v The Commonwealth (1972) 29 LGRA 123
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622

Category:

Principal judgment

Parties:

Anthony Gilbert Martin (applicant)
Minister for Resources and Energy (first respondent)
Hei Long Pty Ltd (second respondent)

Representation:

Mr A G Martin (applicant - in person)
Mr H El-Hage (first respondent)
Mr W J Van Ede (solicitor) (second respondent)
I V Knight, Crown Solicitor (first respondent)
Emil Ford Lawyers (second respondent)

File Number(s):

80021 of 2012

EX TEMPORE Judgment

1. By a summons filed on 16 January 2012, Mr A G Martin seeks the following relief:

(1)   a declaration that exploration licence EL 7850 issued by the Minister for Resources and Energy to Hei Long Pty Ltd is null and void;

(2)   an order directing the Minister to give effect to the Court's above ruling within 14 days;

(3)   a declaration that the Minister is in contempt of court in matter No 80001 of 2011 in granting the exploration licence to Hei Long.

The summons also claims a number of "interim orders".

1. The parties agreed that this matter should await the outcome of the hearing of another matter, No 80001 of 2011, it being accepted that the issue in both proceedings was said to be the same. In matter No 80001 of 2011 the issues related to the non-renewal of a number of other exploration licences held by Mr Martin under the Mining Act 1992, together with a further application for an exploration licence which had not been determined.

1. Matter No 80001 of 2011 was heard on 19 and 20 June 2012 and a reserved judgment was delivered on 3 August 2012: Martin v The State of New South Wales [2012] NSWLEC 182. Mr Martin now wishes to proceed in the present matter.

1. At issue in the present case is the validity of exploration licence EL 7850 which was issued to Hei Long on 21 October 2011. However, on about 9 September 2012, Mr Paul Rainbow of Hei Long forwarded to the Director-General of the Department a formal application for cancellation of the licence in accordance with s 125 of the Act. This triggered the cancellation of the licence on 9 October 2012, notice of the cancellation being published in the NSW Government Gazette No 107 on 12 October 2012. There is thus no licence the validity of which can be questioned.

1. The granting of declaratory and consequential relief by a court is, of course, discretionary. That discretion, although broad, must be exercised in accordance with settled principles. It is a settled principle that no declaration of right can be made if the subject matter of the litigation no longer exists: Mutual Acceptance Ltd v The Commonwealth (1972) 29 LGRA 123 at 125 per Joske J. The court will not decide an abstract or academic question: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gaudron JJ; Johnco Nominees v Albury-Wodonga (NSW) Corporation (1977) 1 NSWLR 43 at 58 - 59 per Moffitt P and at 62 per Hutley JA.

"It is one thing to say that declaratory relief will be granted against the Executive or a statutory authority in relation to existing rights and transactions. It is quite another thing to say that it should be granted in respect of past transactions ...":

Gardner v Dairy Industry Authority of NSW (1977) 52 ALJR 180 at 188, per Mason J.

1. For example, in Minister for Immigration and Multicultural Affairs v Ozmanian [1996] FCA 1017; (1996) 71 FCR 1 at 31 - 33 Kiefel J held that a bare declaration not declaratory of any present right, and amounting only to an acknowledgment of past infringement of a right of procedural fairness, will rarely be justified.

1. In Johnco Nominees, declaratory relief was refused because the subject matter of the dispute was so lacking in capacity to affect legal rights that its construction was an irrelevance. Similarly, in the present case the validity of an exploration licence which has been cancelled is an irrelevance.

1. A court always has power to act to ensure that its processes are not abused: Jardin v Metcash Ltd [2011] NSWCA 409; (2011) 285 ALR 677 at [30] per Campbell JA. It would amount to an abuse of process to allow Mr Martin to prosecute the present case in these circumstances.

1. The claim for a declaration that the State is in contempt in matter No 80001 of 2011 in granting exploration licence EL 7850 to Hei Long on 30 September 2011, is also unsustainable. Mr Martin may well have thought that the State would await the determination of matter No 80001 of 2011 before granting exploration licence EL 7850, particularly since the issues are said to be the same. However in the absence of any interlocutory injunction or any formal undertaking by the State to refrain from issuing the exploration licence, there can be no suggestion that the State is in contempt.

1. In all the circumstances it is appropriate that the summons be dismissed.

1. On the question of costs it is clear that the application to cancel the licence and its subsequent cancellation were not matters within Mr Martin's control. Likewise the receipt by the Director-General of the application to cancel the licence was not within the Director-General's control and the subsequent cancellation was merely a consequential administrative act. Moreover, Hei Long was entitled at any time to apply under s 125 of the Act to cancel the licence.

1. In these circumstances the proper exercise of the cost discretion will usually mean that the Court will make no order as to the costs of the proceedings: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 625 per McHugh J.

Orders

1. The orders of the Court are:

(1)   The summons is dismissed.

(2)   There will be no order as to costs.

(3)   The exhibit may be returned.

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Decision last updated: 29 October 2012