Martin v State of New South Wales (No 9)

[2011] NSWCA 286

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Martin v State of New South Wales (No 9) [2011] NSWCA 286

Hearing dates:

29 August 2011

Decision date:

14 September 2011

Before:

Basten JA 1;
Handley AJA at 2

Decision:

(1) Summons for leave to appeal out of time dismissed.

(2) Applicant to pay the respondent's costs.

[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:

ADMINISTRATIVE LAW - power of Minister to grant authority under the Mining Act 1992 (NSW) - challenge to exercise of power of delegation - whether delegation affected by change in other provisions of Act or of identity of Minister - whether delegation to an office extends to a person acting in that office

APPEAL - civil - interlocutory - leave required - whether reasonably arguable grounds

Legislation Cited:

Land and Environment Court Act 1979 (NSW), ss 42, 57
Mining Act 1992 (NSW)

Category:

Principal judgment

Parties:

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

Representation:

Counsel:

Applicant in person
Ms C Spruce - Respondent
Solicitors:

Applicant self-represented
I V Knight, Crown Solicitor's Office - Respondent

File Number(s):

CA 2011/135546

 Decision under appeal 

Citation:

[2010] NSWLEC 131

Date of Decision:

2010-07-26 00:00:00

Before:

Biscoe J

File Number(s):

80002/2010

Judgment

1. BASTEN JA : I agree with Handley AJA.

1. HANDLEY AJA : By summons filed in this Court on 27 April 2011 the applicant sought an extension of time within which to seek leave to appeal from the decision of Biscoe J. of 26 July 2010 [2010 NSW LEC 131]. The Judge dismissed the applicant's motion for summary judgment in Class 8 proceedings in the Land and Environment Court under the Mining Act 1992 which were part heard before Commissioner Dixon.

1. The underlying proceedings before Dixon C. were a summons by the applicant filed on 3 March 2010 which sought inter alia declarations that the decision by a delegate of the Minister for Mineral Resources on 24 November 2009 to refuse to issue an exploration licence to the applicant was void. One of the grounds in the summons was that the delegation by the Minister to the relevant decision maker was invalid or ineffective.

1. On 6 July 2010 the applicant filed a notice of motion seeking summary judgment, inter alia, on this issue. The notice of motion, and an unrelated notice of motion of 13 July by the Minister were referred to Biscoe J. for hearing on 26 July pursuant to s 42(5) of the Land and Environment Court Act (the Court Act) inserted by Act No 107 of 2008.

1. The instrument of delegation relied on by the State, dated 8 December 2004, was by the then Minister for Mineral Resources inter alia to the "Team Leader Eastern Region". In November 2009 a different Minister held office, and the decision maker was the acting Team Leader. Biscoe J. held that the delegation was valid and effective and dismissed the claim for summary judgment.

1. The decision was interlocutory as the principal proceedings continued before Dixon C. The applicant therefore needed to leave to appeal pursuant to s 57(4)(d) of the Court Act and any such appeal was limited to a question of law (s 57(1)). The applicant was also months out of time.

1. The argument presented to Biscoe J in relation to the invalidity of the delegation was threefold. First, Mr Martin submitted that amendments to the Mining Act in 2009 invalidated the delegation. Secondly, he relied on the change in the identity of the Minister since the instrument of delegation. Thirdly, he noted that the delegation was to a particular officer and that it did not extend to a person acting in that position. Each of these objections can be said to be based on a question of law, but each was without substance.

1. The decision of Biscoe J. was clearly correct for the reasons he gave: at [16]-[18]. For this reason leave to appeal should be refused. The Court should therefore dismiss the summons for leave to appeal out of time and order the applicant to pay the respondent's costs.

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Decision last updated: 14 September 2011