Martin v State of New South Wales (No 2)

[2011] NSWCA 272

Court of Appeal

New South Wales

Case Title:

Martin v State of New South Wales (No 2)

Medium Neutral Citation:

[2011] NSWCA 272

Hearing Date(s):

29 August 2011

Decision Date:

29 August 2011

Jurisdiction:

Before:

Basten JA at 1; 
Handley AJA at 13

Decision:

(1) Strike out notice of appeal as incompetent.
(2) Refuse application for leave to appeal.
(3) Order the applicant to pay the respondent's costs in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - civil - notice of appeal - extension of time to apply for leave to appeal - proceedings brought in behalf of another - other courses open at the date of the challenged judgment to proceed in an alternative way - no clear issue as to law established - not appropriate for a grant of an extension of time - appeal dismissed as incompetent

Legislation Cited:

Land and Environment Court Act 1979 (NSW), ss 56A, 57
Mining Act 1992 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Cases Cited:

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

Texts Cited:

Category:

Interlocutory applications

Parties:

Anthony Gilbert Martin - Applicant
State of New South Wales - Respondent

Representation

- Counsel:

Counsel:

Applicant in person
Ms C Spruce - Respondent

- Solicitors:

Solicitors:

Applicant self-represented
I V Knight, Crown Solicitor - Respondent

File number(s):

CA 2011/135613

Decision Under Appeal

- Court / Tribunal:

- Before:

Pain J

- Date of Decision:

17 February 2010

- Citation:

Martin v Director General, New South Wales Department of Industry and Investment [2010] NSWLEC 21

- Court File Number(s)

80001 of 2010

Publication Restriction:

Judgment

1. BASTEN JA : On 27 April 2011 Mr Martin filed a notice of appeal challenging the decision of Pain J in the Land and Environment Court delivered on 17 February 2010: Martin v Director General, New South Wales Department of Industry and Investment [2010] NSWLEC 21.

1. The proceedings before Pain J involved an appeal in a class 8 matter from a decision of Commissioner Dixon, pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) ("the LEC Act") in the matter of Martin v New South Wales Department of Industry and Investment [2009] NSWLEC 1447. The appeal before her Honour was limited to a question of law.

1. The underlying decision of the Commissioner involved the summary dismissal of proceedings pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"). The proceedings were apparently struck out because they failed to disclose a relevant cause of action. Pain J dismissed the appeal on the basis that the Commissioner's decision revealed no error of law: at [7]. Whether or not the judgment of Pain J is interlocutory, being the point on which the State relied, the applicant required leave because the appeal is sought to be brought from an order or decision made on appeal under s 56A: see LEC Act, s 57(4)(c). Accordingly, the appeal must be dismissed as incompetent.

1. In the alternative, the applicant seeks leave to appeal. He also requires an extension of time of more than 12 months.

1. Underlying issues sought to be raised in the notice of appeal include a challenge to the validity of the amendments to the Mining Act 1992 (NSW), presumably being those amendments which conferred the jurisdiction of the Mining Warden on the Land and Environment Court, in its class 8 jurisdiction. There is also a complaint that the jurisdiction may not be exercised by a "non-judicial person" being a Commissioner of the Land and Environment Court.

1. The issues which Mr Martin now seeks to raise are matters which could have been raised otherwise and in some instances are before the Courts. The challenge before Commissioner Dixon arose in relation to four authorities granted under the Mining Act . One, exploration licence 6355 (EL 6355), had been granted in the name of Mr Martin's wife. There was an issue as to whether or not it had been validly assigned to him. He submitted he was in any event an interested party. However, the proceedings brought by him did not involve his wife either as a named party or otherwise.

1. An application for renewal of the licence was made prior to its expiry according to information provided to the Court. The renewal application was refused and the relevant notice of refusal was gazetted on 26 June 2009. It is true that there is now no opportunity for Mrs Martin to challenge the validity of that refusal if the present appeal were not to proceed. However, this Court was informed that at the time the matter came before Pain J the area of land subject to the EL6355 had not been the subject of a grant of an authority in favour of any other person, nor the subject of an application for such an authority.

1. The second exploration licence in issue was that numbered 6949 (EL 6949). No decision had then been made by the Minister in relation to that authority but proceedings have since been commenced in the Land and Environment Court in relation to the Minister's decision, being matter 80001 of 2011 in that Court.

1. The third authority, exploration licence application 3697 (ELA 3697), was granted to the applicant's wife on 23 December 2009. As at the date of judgment below, it was still open to her to challenge any aspect of that licence and in particular the conditions which were imposed upon it, if she had then wished to do so.

1. The fourth authority was exploration licence application 3747 (ELA 3747) which was refused by the Minister on 24 November 2009, the notice not being gazetted until 4 December 2009. That matter is also before the Land and Environment Court in related proceedings which have been the subject of a further decision by the Commissioner.

1. Accordingly, as at the time that the judgment was handed down on 17 February 2010 there were other courses open to the applicant and, so far as relevant, his wife, if it had been wished to proceed in an alternative way despite the refusal of the appeal against the dismissal of those proceedings. That is a significant factor to be taken into account in circumstances where the application for leave to appeal, taking it to have been made on the date of filing the notice of appeal, as is appropriate, was some thirteen months out of time. In the circumstances and given the fact that there are no clear issues of law arising from the decision of Pain J, it is not an appropriate case for a grant of an extension of time within which to seek leave to appeal. Accordingly, the implied application for that extension is refused.

1. That involves the striking out of the appeal as incompetent. The State asserts that the proceedings now before the Court are interlocutory because they involve a summary dismissal of the appeal under s 56A, for failure on the part of the applicant to identify a relevant error of law. The proceedings are dismissed with costs.

1. HANDLEY AJA : I agree.

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