Martin v NSW Minister for Mineral and Forest Resources

[2011] NSWLEC 38

Land and Environment Court

New South Wales

Medium Neutral Citation:	Martin v NSW Minister for Mineral and Forest Resources [2011] NSWLEC 38
Hearing dates:	17 March 2011
Decision date:	18 March 2011
Before:	Pepper J
Decision:	The applicant to pay the respondent's costs of the proceedings before Dixon C and the respondent's costs of the motion.
Catchwords:	Costs:- whether costs should follow the event - whether litigation was public interest litigation - unsuccessful application ordered to pay the respondent's costs
Legislation Cited:	Civil Procedure Act 2005, ss 11, 61, 98(1) Land and Environment Court Act 1979, ss 21C, 56A Land and Environment Court Rules 2007, r 4.2(1) Evidence Act 1995 Mining Act 1992, ss 13(1), 22(1)(b), 293(1)(q)(ii), Uniform Civil Procedure Rules 2005, rr.42, 42.1,1.7, Sch 2
Cases Cited:	Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; (2010) 176 LGERA 424 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 Gray v Macquarie Generation (No 2) [2010] NSWLEC 82 Hastings Point Progress Association Inc v Tweed SC (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157 Hill Top Residents Action Group Inc v Minister for Planning (No 3); Strang v Minister for Planning [2010] NSWLEC 155; (2010) 176 LGERA 20 Hooper v Port Stephens Council [2010] NSWCA 368 Hooper v Port Stephens Council (No 3) [2010] NSWLEC 178 Kennedy v NSW Minister for Planning [2010] NSWLEC 269 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Martin v NSW Minister for Mineral and Forest Resources [2010] NSLWEC 131 Martin v NSW Minister for Mineral and Forest Resources [2011] NSWLEC 1011 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231 Ruddock v Vardarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229
Category:	Procedural and other rulings
Parties:	Anthony Gilbert Martin (Applicant) Minister for Mineral and Forest Resources (Respondent)
Representation:	Applicant in person Ms C Spruce (Respondent) Applicant in person I V Knight, Crown Solicitor (Respondent)
File Number(s):	80002 of 2010

EX TEMPORE JUDGEMENT

Introduction

1. The applicant, Mr Anthony Gilbert Martin, brought Class 8 proceedings challenging the validity of the respondent, Minister for Mineral and Forest Resources ("the Minister"), refusing his application for an exploration license under the Mining Act 1992.

1. It was held by Dixon C that the applicant's challenge was unsuccessful and that the appeal should be dismissed. Costs were reserved ( Martin v Minister for Mineral and Forest Resources [2011] NSWLEC 1011 at [54]).

1. The Minister, having been successful in the proceedings, now applies, by way of notice of motion filed 10 February 2011, to have Mr Martin pay his costs in respect of those proceedings and this notice of motion. The Minister submits that the usual costs rule that costs follow the event should apply. Mr Martin opposes the making of such an order.

1. In my view, the appropriate order is that Mr Martin should pay the costs of the proceedings before the Commissioner and the costs of this motion.

Application for Adjournment

1. At the commencement of the hearing of the notice of motion, Mr Martin applied for an adjournment of the hearing on the basis that he had filed an appeal in the Court of Appeal against the decision and orders of Dixon C. The application was not made by way of notice of motion and no evidence was put before the Court in support of it. Furthermore, no prior notification was given to the Minister that Mr Martin would be seeking to adjourn the hearing.

1. Dispensing with the need to file a notice of motion, the Court declined to grant the adjournment for the following reasons:

(a) first, there was nothing unjust or unfair about deciding the costs issue raised by the Minister's notice of motion prior to any appeal being heard in the Court of Appeal;

(b) second, the appeal was likely to be futile given that appeals from decisions of commissioners are heard by a single judge of this Court and not the Court of Appeal (see s 56A of the Land and Environment Court Act 1979);

(c)third, only a notice of intention to appeal had been filed and not, as represented, an application to appeal Dixon C's decision.

Factual Background

1. The factual background giving rise to this application is set out in Dixon C's decision and is not repeated in detail here (at [6]-[15]).

1. Suffice it to say, that Mr Martin applied for an exploration license (ELA 3747), under s 13(1) of the Mining Act , which was subsequently recommended to be refused by the Exploration Titles Committee ("the recommendation"), on the basis that he had failed to meet reporting conditions on exploration licenses previously granted to him. Mr Martin was informed of the recommendation by letter dated 8 October 2009.

1. Information in relation to the recommendation was provided late by Mr Martin, but ELA 3747 was nevertheless refused by Mr Rodney George, a delegate of the Minister, in accordance with s 22(1)(b) of the Mining Act .

1. Mr Martin was informed of this refusal in writing on 24 November 2009.

1. On 3 March 2010, Mr Martin commenced Class 8 proceedings pursuant to s 293(1)(q)(ii) of the Mining Act on the basis that the Minister's refusal of his ELA 3747 was unlawful on several grounds.

The Proceedings Before Commissioner Dixon

1. Relevantly, it was noted by Dixon C that the proceedings had been protracted, primarily due to the fact that after the commencement on 14 May 2010, a separate question concerning the jurisdiction of the Court to determine merits review issues in the course of a Class 8 appeal under the Mining Act , was initiated but ultimately not determined. Consequently, the hearing before the Commissioner did not resume until 18 August 2010.

1. The hearing was also further complicated by the fact that Mr Martin, who, it was noted, was not legally trained and was self represented, made a number of lengthy interlocutory applications during the course of proceedings, one being that the Commissioner recuse herself on the ground of apprehended bias. The application was refused (at [3]-[4]). Further, during the course of argument new grounds not articulated in the original or amended summons were raised by Mr Martin. After discussion, leave was given to Mr Martin to raise these grounds.

1. The challenge to the Minister's refusal of the application for ELA 3747 was based on numerous grounds. Dixon C identified these as follows: whether the employees of the department of the Minister acted in bad faith in relation to Mr Martin's application; whether there was an allegation of contempt; whether the Minister had the power to refuse Mr Martin's application for an exploration license made under s 13 of the Mining Act ; whether the Minister had the power to refuse the ELA 3747 on the basis that Mr Martin had failed to comply with conditions on other exploration licenses; whether there was a culture and practice to ignore non-compliance with conditions of exploration licenses; whether Mr Martin had in fact complied with previous conditions of exploration licenses; whether the department was biased against Mr Martin; and whether confidential and commercially valuable information submitted by Mr Martin in his ELA 3747 application, in conjunction with similar material submitted since 20 July 2002, had been used contrary to, and in violation of, the Mining Act .

1. Ultimately, Dixon C held that none of Mr Martin's challenges were successful and that there was no evidence to support any of the contentions that the Minister's decision to refuse ELA 3747 was unlawful. As a result, the Commissioner dismissed the appeal and reserved costs (at [54]).

Evidence of the Parties

1. The Minister relied on an affidavit of Ms Jessica Kavanagh, affirmed 13 July 2010. Ms Kavanagh is the solicitor of the Minister. In her affidavit she deposed to the background in the proceedings before Dixon C. Relevantly, Ms Kavanagh deposed that at the first directions hearing before Moore SC on 29 March 2010, questions concerning the nature of the review sought by Mr Martin in his application were ventilated. Before the Senior Commissioner Mr Martin agreed that he was making an application by way of judicial review in that he was "challenging the decision making process".

1. On 31 March 2010, a telephone conversation took place between Ms Kavanagh and Mr Martin, wherein Mr Martin raised the spectre of an amendment to his summons. Ms Kavanagh told Mr Martin that he may wish to obtain legal advice as to the contents of any amended summons because, at present, the summons did not specify any relief that he was entitled to seek in judicial review proceedings.

1. On 27 April 2010, Mr Martin filed and served an amended summons and points of claim. The relief sought was in the nature of judicial review and not merits review. Accordingly, the Minister proceeded to prepare the matter for hearing on the basis that the application was one of judicial review to review, namely, the lawfulness of the decision of the Minister in refusing ELA 3747.

1. When the proceedings were listed for hearing before Dixon C on 14 May 2010, Mr Martin commenced his submissions and appeared, for all intents and purposes, to make judicial review arguments. However, later that day Mr Martin indicated that he may seek to amplify his claim, thereby necessitating a further amendment of summons and pleadings. During the course of discussion between Mr Martin and the Commissioner as to the scope of the proposed amendments, the Commissioner asked Mr Martin whether he was seeking judicial review or merits review. Mr Martin responded that he did not understand the distinction between the two types of application, and therefore, he required an adjournment to "research" the distinction and to obtain legal advice. Although a review of the transcript of the proceedings before Dixon C on that day indicates that Mr Martin stated that he was "not" asking for an adjournment, it appears that the word "not" is a typographical error. This is consistent with the recollection of Ms Kavanagh and, more importantly, the evidence of Mr Martin contained in his affidavit filed on 23 July 2010, which he read in these proceedings.

1. The proceedings were then properly adjourned by the Commissioner. The Minister was directed to draft and serve a separate question on Mr Martin as to whether or not merits review could be sought within the Class 8 jurisdiction of the Court in an appeal under the Mining Act .

1. On 28 May 2010, the proceedings were listed for mention before Dixon C. On that occasion, both parties indicated a preference to have the separate question referred to a judge for determination. Dixon C accordingly directed the Minister to file and serve a notice of motion seeking referral of the separate question to a judge, together with supporting affidavit evidence. The notice of motion was filed and served on 31 May 2010.

1. On 9 June 2010, Ms Kavanagh received a telephone call which indicated that Mr Martin was now legally represented. As a consequence of the receipt of this information, the Minister decided that it was premature to have the separate question determined until such time as Mr Martin had the benefit of legal advice and could indicate whether he did in fact wish to seek leave to amend his pleadings, and moreover, to permit the nature of any proposed amendments to be fully articulated. As a consequence, the notice of motion was withdrawn and its hearing date was vacated.

1. On 8 July 2010, Ms Kavanagh received a telephone call from Mr Martin's legal representative indicating that he no longer acted for Mr Martin.

1. On 9 July 2010, the matter came before me as List Judge. I made orders in accordance with agreed short minutes of order, which included an order that the Minister file a notice of motion seeking to have a separate question, heard by a judge, as to the nature of the Court's review powers and the relief it could grant in Class 8 of its jurisdiction, by 13 July 2010, together with any evidence in support of the motion.

1. That motion came before Biscoe J on 26 July 2010 ( Martin v NSW Minister for Mineral and Forest Resources [2010] NSWLEC 131). It appears from his Honour's judgment that at the hearing Mr Martin informed the Court that he now understood the distinction between judicial review and merits review and he "made it clear that he did not press for any merits review by the Court" (at [10]). On this basis, the Minister's notice of motion for determination of the separate jurisdictional issue became academic and the parties agreed that it should be dismissed. No order for costs was made.

1. In response to the affidavit of Ms Kavanagh, Mr Martin relied on an affidavit filed 23 July 2010 in the proceedings before Biscoe J. While a number of paragraphs were rejected, or not read, largely on the basis of relevance, the remaining paragraphs revealed the following facts:

(a) that at the first directions hearing before Moore SC, Mr Martin had understood the Senior Commissioner's comments that the hearing of the matter would proceed by way of judicial review to mean that the hearing would be before a judge of the Court rather than a commissioner;

(b) that Ms Kavanagh had stated during the course of that directions hearing that the proceedings were to be conducted as a judicial review hearing; and

(c) that on 14 May 2010 before Dixon C, Mr Martin agreed that when the matter was raised he did not understand the difference between judicial review and merits review and that he had, therefore, sought an adjournment to obtain legal advice.

1. However before me, Mr Martin submitted that the factual findings made by Biscoe J in his judgment, referred to above, were wrong and that he had never sought to raise merits review claims. Mr Martin, however, did not produce any transcript in support of this submission. Absent proof, I am neither willing nor able to do otherwise than accept the correctness of his Honour's findings.

Submissions of the Parties

1. The Minister's primary submission was that as he was wholly successful in the proceedings before Dixon C, costs follow the event, and therefore, Mr Martin should be subject to a costs order.

1. Mr Martin did not agree and in doing so raised five reasons why costs should not be ordered against him.

1. First, Mr Martin complained of the four month delay between Dixon C reserving her decision on 13 September 2010 and handing it down on 25 January 2011. This was particularly acute in circumstances where, according to Mr Martin, the Commissioner had promised to hand down the decision by 24 September 2010. In Mr Martin's submission this delay was unacceptable and had caused him commercial losses. Mr Martin did not, however, quantify what these loses were or put any evidence before the Court demonstrating that they had been incurred.

1. Second, Mr Martin submitted that the reason for the delay referred to in Dixon C's judgment, namely, the necessity for a separate question to be raised occasioned by him wanting to agitate merits claims, was not, as had been suggested, his fault, but rather was the fault of the Minister who had, from the outset, raised the distinction between judicial review and merits review. Mr Martin took the Court to various select parts of the transcript of the proceedings before Dixon C to prove this submission. In addition, Mr Martin alleged that Ms Carolyn Spruce, appearing for the Minister, and her instructing solicitor, Ms Kavanagh, had misrepresented the position to the Court on previous occasions by asserting that the confusion had been created by him.

1. Third, Mr Martin objected to the late notification that he had received from the Minister of his reliance on the affidavit of Ms Kavanagh (only two days prior to the motion being heard). Although no orders were made by the Court in relation to the filing and serving of evidence in support of the notice of motion for costs, Mr Martin nevertheless submitted that he had been prejudiced by the Minister's conduct in this regard.

1. Fourth, that evidence had been put before Dixon C that was inadmissible pursuant to the Evidence Act 1995. Presumably this evidence had been admitted to the detriment of Mr Martin, although this was not stated by Mr Martin. The evidence consisted of a bundle of documents filed in the Court. Mr Martin was neither able to articulate in what way the evidence was inadmissible nor did he put the documents before the Court.

1. Fifth, Mr Martin claimed that the proceedings before Dixon C had been brought in the public interest. The public interest comprised the following:

(a) the environmental damage that had been caused in this State by mining contrary to the Mining Act ;

(b) important questions of bias that had been raised before the Commissioner;

(c) important questions concerning the administration of Class 8 proceedings in the Court; and

(d) by reason of technological advances used in data mining, the proceedings before Dixon C raised matters of public interest concerning the cancellation and non-renewal of exploration licences, contrary to the interests of the State and contrary to the spirit and the terms of the Mining Act .

The Power of the Court to Order Costs in Class 8 Proceedings

1. Pursuant to s 21C of the Land and Environment Court Act the Court has jurisdiction to hear and dispose of proceedings arising under the Mining Act .

1. The power of the Court to order costs is contained in s 98 of the Civil Procedure Act 2005 ("the CPA"). Section 98(1) provides:

98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act:

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

1. The relevant rules of the Court are contained in r 42 of the Uniform Civil Procedure Rules ("UCPR"). Rule 42.1 provides:

42.1 General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

1. The Land and Environment Court has adopted specific rules with respect to costs of proceedings in certain classes of its jurisdiction, which prevail over r 42.1 of the UCPR to the extent of any inconsistency (s 11 of the CPA and r 1.7 and Sch 2 of the UCPR).

1. For example, r 4.2(1) of the Land and Environment Court Rules 2007 provides:

4.2 Proceedings brought in the public interest

(1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.

1. However, this rule is only applicable to Class 4 of the Court's jurisdiction. There is no equivalent rule for Class 8 of the Court's jurisdiction. Therefore, UCPR r 42.1 applies in this instance.

Legal Principles in Relation to Costs Discretion and Public Interest Litigation

1. The usual costs rule under r 42.1 of the UCPR provides that the proper exercise of the Court's discretion will normally require an order that the costs of a successful party be paid by the unsuccessful party ( Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 at [8]).

1. However, the Court, can and has, departed from the usual costs order in certain circumstances. One identified circumstance is when the proceedings are brought in the public interest (see Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72; Ruddock v Vardarlis (No 2) [2001] FCA 1865; 115 FCR 229; Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157 at [3]; Caroona at [7]).

1. In Caroona, after reviewing the applicable authorities, Preston CJ laid down a three step approach to determine whether to depart from the usual costs rule in public interest proceedings:

(a) first, can the litigation be characterised as having been brought in the public interest;

(b) second, if so, is there "something more" than the mere characterisation of the litigation as being brought in the public interest; and

(c) third, are there any countervailing circumstances, including those relating to the conduct of the applicant, which speak against a departure from the usual costs rule in respect of public interest litigation.

1. This three step approach has been endorsed by the Court of Appeal (see Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263; (2010) 176 LGERA 424 at [80]-[86] and [202]) and has been applied recently by this Court (see Gray v Macquarie Generation (No 2) [2010] NSWLEC 82 at [12]-[15]; Hill Top Residents Action Group Inc v Minister for Planning (No 3) ; Strang v Minister for Planning [2010] NSWLEC 155; (2010) 176 LGERA 20 at [39]-[43]; Kennedy v NSW Minister for Planning [2010] NSWLEC 269 at [5]-[14]; Hooper v Port Stephens Council (No 3) [2010] NSWLEC 178 at [43]-[50], upheld on appeal in Hooper v Port Stephens Council [2010] NSWCA 368 at [28]-[29] and Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231 at [171]-[173]).

1. In relation to the first step, Caroona endorsed (at [38]-[46]) five considerations that Lloyd J in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 at [15] identified in determining whether litigation can be properly characterised as having been brought in the public interest. These include:

(a) whether the public interest was served by the litigation;

(b) whether that interest is confined to a relatively small number of members from the group or association in the immediate vicinity of the development, or whether the interest is wider, involving a significant number of members of the public and is concerned with a wider and significant geographic area;

(c) whether the applicant sought to enforce public law obligations;

(d) whether the prime motivation of the litigation is to uphold the public interest and the rule of law; and

(e) whether the applicant has a pecuniary interest in the outcome of the proceedings.

1. As noted in Caroona (at [41]), these considerations are not limited, and others may be relevant. However, it is not sufficient to merely state that the proceedings are in the public interest, this must be established on the evidence (see Caroona at [49] and Hooper (No 3) at [44]).

1. In Caroona Preston J identified at least five categories of cases containing additional factors, or the second step requirement of "something more", that would justify a departure from the usual costs rule (at [60]). These are whether:

(a) the litigation raises one or more novel issues of general importance;

(b) the litigation has contributed, in a material way, to the proper understanding, development or administration of the law;

(c) where the litigation is brought to protect the environment or some component of it, the environment or component is of significant value and importance;

(d) the litigation affects a significant section of the public; and

(e)there was no financial gain for the applicant in bringing the proceedings.

1. Finally, in relation to the third step, in Caroona Preston J identified countervailing circumstances, even where the litigation could be characterised as public interest litigation, that may weigh in favour of the usual costs rule. These included whether (at [61]):

(a) the applicant is seeking to vindicate rights of a commercial character and stands to benefit from the litigation;

(b) where the applicant is an incorporated association, the private interests of members of the association would be affected, legally or financially, by the outcome of the litigation;

(c) the applicant is supported financially by persons or bodies who would benefit from, or would have their legal or financial interests affected by, the outcome of the litigation;

(d) the narrowness of the question of public interest raised, such as only involving a discrete point of interpretation without broad ramifications; and

(e) the applicant "unreasonably pursues or persists with points which have no merit" (Oshlack v Richmond River Council at [134] per Kirby J) or issues that were not "eminently arguable".

Consideration

1. First, turning to the initial limb of Mr Martin's claim concerning delay, namely, the four month period from the time the Commissioner reserved her decision to the time she handed it down, I do not think that this was in any way unreasonable. On the Contrary, in all the circumstances, it was commendable. As the Minister submitted, and which I accept, the proceedings before the Commissioner were not only interrupted as a consequence of the jurisdictional issue (ultimately dismissed before Biscoe J), they were also subject to a number of interlocutory steps, which would have necessitated the Commissioner reviewing the transcript and the exhibits before her in detail prior to the delivery of judgment. I do not accept as Mr Martin submitted, that any guarantee was given by the Commissioner to hand down the decision by 24 September 2010. On the contrary, a fair reading of the transcript indicates that while the Commissioner would make every effort to hand down the judgment as expeditiously as possible she was going on holiday on 24 September 2010 and it might have to wait until after her return.

1. In any event, the purpose of an award of costs is to compensate the successful party ( Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534). Even if the time taken in handing down the decision could be characterised as unreasonable, which I reiterate it could not, in no way could this delay operate to deny the Minister his costs.

1. As to the second aspect of purported delay, a study of the transcript, the affidavit evidence of Ms Kavanagh and that of Mr Martin, demonstrates that while the issue of whether or not Mr Martin's application was to be properly characterised as one seeking merits review, or seeking judicial review had been initially raised by the Court (by both the Senior Commissioner and Dixon C), the fact remains that it was Mr Martin who sought the adjournment before Dixon C in order to "research" the question and it was Mr Martin who permitted the Minister to proceed with the preparation of an application before this Court for a separate jurisdictional question, only to then not press the substance of the application when it came to be heard before Biscoe J. That is to say, it was Mr Martin's decision to not press any merits review claim that caused the Minister to throw away his costs in respect of the application.

1. Further, there is no basis, as Mr Martin has suggested, for any finding that the Minister has acted in any way that would disentitle him to his costs. I find there to be no substance whatsoever to the claim that either Ms Spruce or Ms Kavanagh in any way misrepresented the position to the Court in this regard. The accusation is entirely unfounded and baseless.

1. While I accept that Mr Martin, as a lay person, may have been confused as to the distinction between merits review and judicial review and while I have made considerable allowance for the fact that Mr Martin is self- represented, it remains the fact that Mr Martin ought to have informed the Minister that he was not intending to amend the summons in a way that raised merits review considerations well before the day of the hearing of the separate question motion.

1. Second, in relation to the late notification given to him concerning Ms Kavanagh's affidavit, I accept that it would have been preferable for the Minister to re-serve the affidavit on Mr Martin in a more timely fashion, given his unrepresented status. However, whatever prejudice may have arisen, which Mr Martin was unable to expand upon to the Court, was, in any event, cured by Mr Martin reading his affidavit of 23 July 2010 in response to Ms Kavanagh's affidavit. In addition, the Court gave Mr Martin considerable latitude to make submissions and, in effect, give evidence from the bar table concerning the matters raised in Ms Kavanagh's affidavit.

1. But, the late notification of the Minister's reliance on Ms Kavanagh's affidavit is irrelevant to the question of costs. The only disentitling conduct that the Court can have regard to is the disentitling conduct, if any, of the Minister during the course of the proceedings before Dixon C. The late notification does not, in my view, meet this description.

1. Third, in relation to the claim that inadmissible evidence was put before the Commissioner, in the absence of any explanation as to why these documents were inadmissible and without being furnished with them, this argument must be rejected in its entirety, including as a basis for again asserting that the Minister engaged in disentitling conduct in the conduct of the litigation that would preclude it from obtaining costs.

1. Fourth, in relation to the public interest matters that Mr Martin raised, it must at the outset be remembered that the proceedings were bought by Mr Martin to vindicate a private interest, namely, the decision of the Minister to refuse ELA 3747. It is difficult to see how, in these circumstances, the litigation may be characterised as being brought in the public interest. This is not to say, however, such issues may not have been raised during the course of argument.

1. Turning first to the environmental damage that Mr Martin claims has been permitted to occur contrary to the Mining Act , this claim did not form the basis of either the amended summons or points of claim filed in the Court, nor the relief sought in the proceedings. Likewise, this claim did not form any part of the argument before Dixon C. Not surprisingly, therefore, Dixon C did not refer to it in her judgment. I, therefore, do not accept that this matter of so-called public interest was raised at all during the course of the proceedings by Mr Martin.

1. As to the second aspect of public interest relied upon by Mr Martin, while it is correct that Mr Martin raised a claim of apprehended bias against Dixon C, there is nothing about the way in which this claim was ventilated that could give rise to a matter of public interest or would warrant the litigation being characterised in this way.

1. It was, thirdly, unclear how the administration of Class 8 proceedings in this Court gave rise to, or could assist in characterising these proceedings as in, the public interest. Absent any further explanation by Mr Martin, this claim must also be rejected.

1. Finally, in relation to the claim that technological advances used in data mining gave rise to a matter that was in the public interest, again the Minster relied on the fact that no such contention was contained in the pleadings, it was not the subject of any relief sought and it was not the subject of any argument before the Commissioner. I accept the submissions of the Minister in this regard. The proceedings cannot, therefore, be characterised as in the public interest on this basis.

1. It follows that the litigation cannot as a first step, in my view, be characterised as having been brought in the public interest. However, even if it could, the second and third steps identified in Caroona are also unable to be satisfied by Mr Martin.

1. In relation to the second step, the manifest hopelessness of the grounds raised by Mr Martin preclude finding that there was "something more" than the mere characterisation of the litigation as having been brought in the public interest. Further, as argued, the litigation did not raise one or more novel issues of general importance nor did the litigation contribute in any way to the proper understanding, development or administration of the law. While the separate question would arguably have satisfied the latter criterion, it was, in effect, abandoned by Mr Martin in the proceedings before Biscoe J. Further, although Mr Martin claimed that the litigation was brought to protect the environment, as discussed above, this was nowhere to be found in the proceedings before Dixon C.

1. In relation to the third step, in my opinion, there are significant countervailing considerations that would, in any event, warrant a departure from the usual costs rule in respect of public interest litigation that there be no order as to costs. First, as noted above, in bringing the proceedings Mr Martin was seeking to vindicate his private commercial interests. Second, as the history of the proceedings before Dixon C reveals, it would not be unfair to describe Mr Martin's conduct as being characterised by an unreasonable pursuit of points that had no merit. Third, his abandonment of any merits review claims before Biscoe J on the day of the hearing of the separate question amounts to disentitling conduct in the conduct of the litigation.

1. In summary, I do not find that the proceedings were brought, as Mr Martin claimed, in the public interest.

1. Finally, and for completeness, Mr Martin submitted that in the alternative to the Court making no order as costs as he contended for, the Court should exercise its discretion contained in s 61 of the CPA to order costs payable by Mr Martin in the sum of $1. Leaving aside the fact that this provision is directed towards the Court's power to make directions concerning practice and procedure generally, and not to the making of costs orders, for all the reasons given above, I would decline to order costs in this token amount.

Orders

1. It follows from the reasons above, the orders of the Court are that Mr Martin is to pay the costs of the proceedings before Dixon C and the costs of this motion.

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Decision last updated: 24 March 2011