Martin v New South Wales Department of Industry and Investment

[2009] NSWLEC 1447

Land and Environment Court

of New South Wales

CITATION:

Martin v New South Wales Department of Industry and Investment [2009] NSWLEC 1447

PARTIES:

APPLICANT
A G Martin

RESPONDENT
New South Wales Department of Industry and Investment

FILE NUMBER(S):

80004 of 2009

CORAM:

Dixon C

KEY ISSUES:

APPEAL :- Cancellation of exploration licence

LEGISLATION CITED:

Mining Act 1992
Civil Procedure Act [2005]
Uniform Civil Procedure Rules

DATES OF HEARING:

11 December 2009

EX TEMPORE JUDGMENT DATE:

11 December 2009

LEGAL REPRESENTATIVES:

APPLICANT
Litigant in person

RESPONDENTS
Ms Spruce (Barrister)
INSTRUCTED BY
I V Knight
Crown Solicitors Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Dixon C

11 December 2009

80004 of 2009 Anthony Gilbert Martin v New South Wales Department of Industry and Investment

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

Introduction

1 I will now hand down my decision in relation to proceedings number 09/80004 Anthony Gilbert Martin & Ors v New South Wales Department of Industry and Investment (as pleaded in the original proceedings) and note that this ex-tempore judgment deals with three matters: first, the applicant’s notice of motion filed on 11 November 2009, and affidavit in support by Mr Anthony Gilbert Martin sworn on 11 November 2009 seeking leave to file an amended summons; second, the Crown‘s notice of motion to have the proceedings struck out under s 13.4 of the Uniform Civil Procedure Rules and thirdly, the applicant’s application during the hearing for injunctive relief on the same grounds as the summons.

2 I note that the Crown opposes the notices of motion filed by the applicant and in relation to the application for injunctive relief submits it is opposed on the same grounds as the substantive motion because there is no cause of action.

3 The Crown relies on section 13.4(1) of the Uniform Civil Procedure Rules it states:

13.4 Frivolous and vexatious proceedings
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

Representation

4 The applicant is self represented and the Crown is represented by Ms Spruce a barrister. During the hearing I had an opportunity to clarify the respondent’s representation in relation to the proceedings and Ms Spruce indicated that she also has instructions to appear on behalf of the 3rd, 5th, 7th, 8th, 9th, 10th, 11th defendants personally named by the applicant but she was unable to contact over the lunch break the 2nd or 4th respondents, (who no longer work with the department), or the 6th or 12th respondents.

5 However, she submits that although she does not have specific instructions to act for the 2nd, 4th, 6th and 12th respondents she submits that there is no basis to the claims as pleaded against them and therefore no reason why the court should not make the same order for dismissal of the summons that she says is justified in relation to the clients she does have instructions directly from.

Service of the Applicant’ s Notice of Motion

6 The applicant says he served the defendants personally but has no affidavit of service.

7 The applicant says he attended the Department of Industry and Investment’s offices on 24 September 2009 and served a copy of the summons on a man he believed to be the department’s legal officer who apparently accepted the documents. The applicant does not recall that person’s name, or title, but tells me that he assumes he is the legal officer. When I asked for more detail the applicant told me that the person received the summons but nothing to him.

8 I do not believe that this has been effective service of the documents, however, despite that fact, the Crown appears today and represents a number of defendants named and I intend to deal with the matter.

9 I have read the applicant’s affidavit in support of his notice of motion and the amended summons and the bundle of documents filed in court today. I set out the amended claim:

“TYPE OF CLAIM

[Select type of claim from the list provided in section 6 of the Guide to preparing documents, available on the UCPR website at http:l/ or at any NSW court registry.]

Mining Act 1992-Administrative Law
[on separate page]

[Note: If the completed RELIEF CLAIMED will fit in the available space appearing after TYPE OF CLAIM on the first page of this form, you may delete the page break, include the RELIEF CLAIMED on the first page and start this page with SIGNATURE.]

RELIEF CLAIMED
1 Renewal and Restoration of NSW Exploration Licence EL 6355 to Anthony Gilbert Martin or Sue Dolores Martin or Anthony Gilbert Martin and Sue Dolores Martin
2 Grant of Exploration Licence for 5 years to Anthony Gilbert Martin over area covered by Exploration Licence Application EA 3747
3 Renewal of Exploration Licence 6949 for a period of 3 years to Anthony Gilbert Martin
4 Grant of Exploration Licence for 5 years to Sue Dolores Martin over area covered by Exploration Licence Application ELA 3697.
5 Dr Richard Sheidrake, Mr Bradley W Mullard, Mr Lindsay Gilligan, Mr John Leeks, Mr Rodney George and Mr Stephen Hughes to show cause why they should not be charged with contempt of court.
6 Cancellation of Exploration Licences Application ELA 3759 applied for by Central West Scientific Pty Ltd.
7 Penalties under the Mining Act 1992L against defendants 1-12
8 Damages under the mining Act 1992 to Anthony Gilbert Martin or Sue Dolores Martin or Anthony Gilbert Martin and Sue Dolores Martin from defendants 1-12

10 I have read the motion and the bundle of documents filed by the Crown which support their application for orders that the matter be struck out.

11 After a consideration of all of the evidence including the oral evidence, (and I note that I have sat from early this morning until 3:15pm with a short lunch break) and given the applicant what I believe to be a fair opportunity repeatedly, even over lunchtime, to try and come to some substance in his allegations I have not received any submission or information which in my view forms any ground to allow this matter to proceed. Therefore, I have decided that the proceedings are to been dismissed under s 13.4(1) on the grounds of;

(a) the proceedings would be vexatious and frivolous if they were to proceed further than today;
(b) no reasonable cause of action
(c) the proceedings are an abuse of process if I were to allow them. I set out the reasons for my decision below.

Evidence

12 This matter commenced in the Land and Environment Court on 24 September 2009. The first directions hearing was before Senior Commissioner Moore on 19 October. At the telephone conference, which I attended but did not formally participate in, certain directions were given by the Senior Commissioner to allow the applicant to file an amended summons with a motion and to particularise, by way of points of claim, his claim.

13 On that basis, the number was adjourned until today when it has been allocated to me by the Chief Judge to deal with the notice motion for the substitution of the amended summons and also the notice of motion filed by the Crown seeking orders to have the matter struck out and that is what I am dealing with at this hearing.

14 I find no reasonable cause of action against the defendants disclosed in any of the documentation that has been filed by the applicant or anything that he has said to me during the course of the day to clarify his claim (reproduced at para 9 above ). I invited the applicant to consider obtaining legal advice at the outset of this matter and he declined my invitation. The matter was adjourned at lunchtime today to allow the applicant to again consider his position and to provide him with an opportunity to go through his evidence, together with his wife who I understand is assisting him in the process, to collect his thoughts and to come back to me to explain the basis of his cause of action so that I might then appreciate how I could possibly allow this matter to proceed on reasonable grounds.

15 To that end, nothing has been put forward to convince me that there are any reasonable grounds to warrant this application proceeding.

16 I also asked the applicant to think about a possible costs application by the defendants should he pursue this notice of motion to amend the substantive proceedings. I explained to the applicant repeatedly his exposure to costs claim; the Crown has a barrister who has been briefed, in attendance all day together with an instructing solicitor. Despite my efforts to avoid unnecessary costs to the applicant, he pressed ahead after we came back from lunch and, mindful that I needed some time to have a look at some further documents tendered by him, I adjourned to read those documents, some of which were already before me. In any event, those documents provided no support to any of the allegation raised in the applicant’s case.

17 Section 56 of the Civil Procedure Act 2005 sets out the overriding purpose of the Act in civil proceedings; that is to facilitate the just, quick and cheap resolution of the real issues in the proceedings; that is we need real issues before the matter can proceed.

18 Just before I delivered this judgment on the notices of motions the applicant asked me to adjourn the proceedings to allow him a further opportunity to amend his claim or to grant an injunction. However, I decline to allow either an adjournment or an injunction because the applicant has had ample opportunity to particularise his application.

19 I am required to consider 58 of the Civil Procedure Act 2005, the dictates of justice, and I have done that. Section 58.2 requires that I consider ss 56 and 57, which I have just referred to: the overriding purpose and the other section deals with the objects of case management. I must have regard to the efficient disposal of the business of the court, the just determination of the proceedings, the timely disposal of the proceedings and all other proceedings in the court and the cost to each of the parties.

20 I have considered for some hours this morning and this afternoon the applicant’s allegations and found no reasonable cause of action alleged in the original summons or the amended summons attached to the notice of motion.

21 Accordingly, I have had regard to the dictates of justice and have decided to dismiss the application under s 13.4 of the UCPR 2005 together with the application for injunction made in Court on the same grounds because there is no reasonable cause made out, to support the application.

22 I now turn to the respondent’s costs.

SPRUCE: The respondent seeks costs, Commissioner.
COMMISSIONER: Do you have any quantification of your costs or is that a matter that you need to--

SPRUCE: We don't have anything today.

COMMISSIONER: Is there something that the applicant would like to say in relation to costs?

APPLICANT: Costs should not be granted and costs not be granted because this hearing was specifically set because the respondent submitted to Commissioner Moore that the matter should not proceed but it should come back before a judge or Commissioner Moore said it will go back before a judge where directions would be given for the hearing of the matter. I came in, I did everything possible by email to the Crown Solicitor to clarify the position of the parties and I came in and I’ve been ambushed. My submission is that I’ve been ambushed to meet the total case today and, as such, it’s my submission that costs should not be granted.

COMMISSIONER: Thank you. Having heard what you have said in relation to costs, I intend to make an order for costs. I understand that the costs are not a matter that can be articulated in a crystallised way today, so I order that the applicant pay the respondent’s costs as agreed or assessed. I would normally attach a timeframe to that. Is there a timeframe in mind that you would like to put to me and then I’ll ask the applicant.

SPRUCE: The respondent can quantify their costs within a week.

COMMISSIONER: All right, so in terms of any opportunity to negotiate that amount, you will communicate that to the applicant so the matter should then be resolved within a timely fashion thereafter.

SPRUCE: I think two weeks would be fine.

COMMISSIONER: All right, well I’ll say four weeks to allow the applicant some time to consider and then perhaps if the matter needs to proceed to an assessment, whether you'd achieve that within the four-week period.

SPRUCE: I’m just being told that the office shut.

COMMISSIONER: Yes, that's right. I think it probably is prudent that I leave it without a timeframe attached to it. It will be as agreed or assessed and then obviously if the matter is not resolved you have the opportunity to pursue that. .

___________________

Susan Dixon
Commissioner of the Court
ljr/ajl