Martin v State of New South Wales (No 2)

[2010] NSWLEC 271

Land and Environment Court

of New South Wales

CITATION:

Martin v State of New South Wales (No 2) [2010] NSWLEC 271

PARTIES:

APPLICANT:
Anthony Gilbert Martin

FIRST RESPONDENT:
State of New South Wales

SECOND RESPONDENT:
Central West Scientific Pty Ltd

FILE NUMBER(S):

80004 of 2010

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- discovery

LEGISLATION CITED:

Mining Act 1992

CASES CITED:

Martin v State of NSW [2010] NSWLEC 247

DATES OF HEARING:

29 December 2010

EX TEMPORE JUDGMENT DATE:

29 December 2010

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Martin (in person)
SOLICITORS:
n/a

SECOND RESPONDENT:
Mr T Richards (director)
SOLICITORS:
n/a

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

29 December 2010

80004 of 2010

MARTIN v STATE OF NEW SOUTH WALES & ANOR

EX TEMPORE JUDGMENT

1 HIS HONOUR: I am dealing with a discovery issue.

2 On 29 November 2010 I ordered each respondent to give discovery of certain documents by 6 December 2010: Martin v State of NSW [2010] NSWLEC 247. Subsequently, the applicant disputed the adequacy of the first respondent’s discovery and complained that the second respondent had failed to comply with the discovery order against it. The matter came before Justice Pain on 23 December 2010. Her Honour made certain directions, including that the matter be adjourned to today before me as the duty judge to deal with the complaint of non-discovery against the second respondent which was directed to attend. The first respondent was excused from attendance.

3 Mr Richards, a director of the second respondent, represents the second respondent today. He has apologised for not complying with the discovery order. He has explained that he was impeded in complying with the order due to his absence from the State until 23 December and he has referred obliquely to further circumstances which have impeded him since then. He indicated that he expected to be able to comply today. He and the applicant have agreed that copies of discovered documents may be provided to the applicant on a DVD.

4 I propose to extend the time for the second respondent to comply with the 29 November 2010 order for discovery until 5 pm today. Mr Richard’s attention has been drawn to the need to swear an affidavit of discovery.

5 One further matter is pressed by the applicant, Mr Martin. In paragraph 19 of his affidavit he expresses a belief that in the circumstances relating to discovery alleged in his affidavit, the orders sought in paras 1, 2 and 3 of his summons should be granted today. The summons in those paragraphs claims a declaration that exploration licence EL 7547 is null and void under the Mining Act 1992, that the Court directs the NSW Minister for Mineral Resources to give effect under the Mining Act to the Court’s ruling on that exploration licence within 14 days, and costs. It is entirely inappropriate in circumstances where only a limited discovery issue has been referred to me, with the first respondent excused from attendance, to entertain an informal application for summary judgment which would be dispositive of the proceedings.

6 The applicant seeks an order that the second respondent pay his costs of attending today. The second respondent proposes that costs be reserved. As the applicant is self-represented, any costs would seem to be limited to travel expenses. On balance, I propose to reserve the costs of today.

7 The orders of the Court are as follows:

(1) Order 3 made on 29 November 2010 is varied as follows:
The second respondent is to give discovery of all documents in its possession or power in relation to EL 6499 and EL 7547 but only insofar as those documents relate to the land that is the subject of EL 7547, by 5 pm on 29 December 2010.

(2) The costs of today are reserved.