Martin v NSW Minister for Mineral and Forest Resources
[2010] NSWLEC 131
•26 July 2010
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION:
Martin v NSW Minister for Mineral and Forest Resources [2010] NSWLEC 131
PARTIES:
APPLICANT
Anthony Gilbert Martin
RESPONDENT
NSW Minister for Mineral and Forest Resources
FILE NUMBER(S):
80002 of 2010
CATCHWORDS:
MINES AND MINERALS :- validity of refusal by Minister's delegate of an application for an exploration licence
LEGISLATION CITED:
Interpretation Act, ss 30(1)(b), 48(2).
Mining Act 1992, ss 13(1), 293(1)(q)(ii), 363(1).
CORAM:
Biscoe J
DATES OF HEARING:
26 July 2010
JUDGMENT DATE:
26 July 2010
LEGAL REPRESENTATIVES
APPLICANT:
Mr A G Martin (in person)
SOLICITORS:
n/a
RESPONDENT:
Ms C Spruce
SOLICITORS:
Crown Solicitor's Office
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBISCOE J
26 July 2010
80002 of 2010
ANTHONY GILBERT MARTIN v MINISTER FOR MINERAL AND FOREST RESOURCES
JUDGMENT
HIS HONOUR: The applicant commenced what appeared to be judicial review proceedings challenging the validity of the respondent Minister’s refusal of an exploration licence under the Mining Act 1992. The proceedings are part heard before a commissioner. There are two notices of motion before me:
(a)a notice of motion by the applicant, Anthony Gilbert Martin, seeking against the respondent, the NSW Minister for Mineral and Forest Resources, summary judgment, interim orders and leave to serve subpoenas;
(b)a notice of motion by the Minister seeking a determination, as a separate question before any further hearing of the proceedings, as to whether the Court has merits review jurisdiction under s 293(1)(q)(ii) of the Mining Act 1992 which provides:
“The Land and Environment Court has jurisdiction to hear and determine proceedings relating to any of the following matters:
(q)any question or dispute as to:
(ii)the decision of the Minister or a mining registrar in relation to an application for the granting, renewal or transfer of an authority, a mineral claim or opal prospecting licence”
At the hearing the applicant made it clear that he does not and will not press for any merits review in the proceedings. The jurisdictional question thereupon became academic. Therefore the parties agreed that the Minister’s notice of motion should be dismissed. The applicant’s notice of motion for summary judgment was pressed only on a limited point of validity of delegation of the Minister’s authority. In my view the motion for summary judgment should be dismissed.
Background
On 24 November 2009 a delegate of the NSW Minister for Mineral and Forest Resources refused the application of the applicant, Anthony Gilbert Martin, for a grant of an exploration licence under s 13(1) of the Mining Act 1992.
On 3 March 2010, by summons, the applicant commenced proceedings in Class 8 of the Court’s jurisdiction against the Minister pursuant to s 293(1)(q)(ii) of the Mining Act. On 27 April 2010 the applicant filed an amended summons and points of claim. The primary relief sought in the amended summons appeared to be that the refusal of the Minister’s delegate to grant the exploration licence was null and void because the delegation was invalid. The summons and points of claim made other allegations which also appeared to be directed to the lawfulness of the decision-making process.
The proceedings commenced to be heard by a commissioner of the Court on 14 May 2010. The applicant was self-represented. Evidence was tendered by both parties. The evidence tendered by the Minister was directed to the legality of the decision-making process. During oral argument it appeared that the applicant wished to challenge the merits of the decision. The question arose whether the Court had jurisdiction to conduct a merits review as opposed to judicial review. It appears that the applicant did not at that time understand the distinction. He has informed me today that he does now understand the distinction.
The commissioner decided that the appropriate course was for the proceedings to be adjourned and for the jurisdictional question to be resolved prior to the rest of the proceedings being heard. The commissioner noted that the ajournment would afford the applicant an opportunity to obtain legal advice. The commissioner directed the Minister to draft a second separate question as to whether proceedings under s 293 (1)(q)(ii) of the Mining Act involved merits review or are in the nature of judicial review and set a timetable for the hearing of the separate question.
The Minister subsequently formed the view, that, given the importance of the question, it should be determined by a Judge. On 31 May 2010 the Minister filed and served a notice of motion seeking to have the jurisdictional issue determined by a Judge as a separate question before the rest of the proceedings. The Minister subsequently withdrew its original notice of motion on the basis that it was premature to proceed until the applicant, having had the benefit of legal advice, had indicated that he did in fact wish to amend his pleadings and any proposed amendments were known. On 9 July 2010 the List Judge directed the Minister to file a notice of motion to have the jurisdictional issue determined by a Judge, in accordance with agreed short minutes of order.
On 13 July 2010 the Minister filed the notice of motion presently before the Court seeking determination of the jurisdictional issue as a separate question by a Judge.
On 6 July 2010 the applicant filed the other notice of motion presently before the Court seeking summary judgment and other orders.
At the hearing this morning the applicant made it clear that he did not press for any merits review by the Court. On that basis, the Minister’s notice of motion for determination of the jurisdictional issue has become academic and consequently, the parties agree that it should be dismissed.
At the hearing this morning the only basis upon which the applicant pressed for summary judgment was that the refusal of his mining exploration licence was invalid because the officer of the Department who refused the application did not have delegated authority to do so from the Minister. I proceeded to hear that point.
The delegation
Section 363 of the Mining Act provides that “The Minister may delegate any function under this Act (except this power of delegation) to any person”.
By an instrument of delegation dated 8 December 2004, Kerry Hickey, Minister for Mineral Resources, pursuant to s 363(1) delegated functions, including the functions of granting an exploration licence or refusing an application for an exploration licence, to delegate categories including “Team Leader, Eastern Region”.
On 24 November 2009 the applicant’s application for an exploration licence was refused by an officer of the Department of Primary Industries, namely the Acting Team Leader, Eastern Region, purporting to act as the delegate of the Minister. Notice of the refusal appeared in the NSW Government Gazette on 4 December 2009 above the name of Peter Primrose, MLC, Minister for Mineral Resources.
The applicant submits that the refusal was invalid for three reasons.
First, the applicant submits that the Mining Act was substantially amended in 2009 prior to the refusal and the delegation had to be under the version of the Act that was current at the time of the refusal. I do not accept the submission. The answer is provided by s 30(1)(b) of the Interpretation Act 1987 (NSW) which provides:
“(1) The amendment or repeal of an Act or statutory rule does not:
(b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or”
Secondly, the applicant submits that once Kerry Hickey ceased to be the Minister the 2004 instrument of delegation lapsed. I do not accept the submission. The delegation was made by the office of the Minister and did not lapse because the officeholder changed.
Thirdly, the applicant submits that the delegation was relevantly to the Team Leader, Eastern Region, and not to the “Acting” Team Leader, Eastern Region, who was the person who refused the application. I do not accept the submission. The answer is provided by s 48(2) of the Interpretation Act 1987 which provides:
“If an Act or instrument confers or imposes a function on a particular officer or the holder of a particular office, the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying or acting in the office concerned.”
Conclusion
The orders of the Court are as follows:
1.By consent the respondent’s notice of motion filed on 13 July 2010 is dismissed.
2.The applicant’s notice of motion filed on 6 July 2010 insofar as it seeks summary judgment is dismissed.
3.By consent:
(a)the parties are forthwith to obtain dates for the resumption of the hearing before Commissioner Dixon;
(b)the balance of the applicant’s notice of motion filed on 6 July 2010 is stood over before Commissioner Dixon on the resumed hearing date.
4.The exhibits may be returned.
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