Martin v State of NSW
[2010] NSWLEC 247
•29 November 2010
Land and Environment Court
of New South Wales
CITATION: Martin v State of NSW [2010] NSWLEC 247 PARTIES: APPLICANT:
Anthony Gilbert MartinFIRST RESPONDENT:
SECOND RESPONDENT:
State of NSW
Central West Scientific Pty LtdFILE NUMBER(S): 80004 of 2010 CORAM: Biscoe J KEY ISSUES: PRACTICE AND PROCEDURE :- judicial review proceedings in class 8 of the Court’s jurisdiction challenging the validity of an exploration licence – applicant’s motion that the action be heard by a judge, that the respondent State of NSW show cause why it should not be charged with contempt, that the applicant have leave to file summary judgment, alternatively that the respondents give discovery, and that the Crown Solicitor (acting for the first respondent) file and serve his authority from the Attorney-General to draft points of defence – motion dismissed except re discovery – matter fixed for final hearing and procedural timetable ordered LEGISLATION CITED: Land and Environment Court Rules 2007, r 5.2
Mining Act 1992
Supreme Court Rules 1970, Pt 55DATES OF HEARING: 29 November 2010 EX TEMPORE JUDGMENT DATE: 29 November 2010 LEGAL REPRESENTATIVES: APPLICANT:
Mr A Martin, in person
SOLICITORS:
n/a
FIRST RESPONDENT:
Ms C Spruce, barrister
SOLICITORS:
Crown Solicitor's Office
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BISCOE J
29 November 2010
80004 of 2010
EX TEMPORE JUDGMENTMARTIN v STATE OF NEW SOUTH WALES & ANOR
1 HIS HONOUR: In this proceeding filed on 29 October 2010 the applicant, Anthony Gilbert Martin, challenges the validity of exploration licence EL7547 granted under the Mining Act 1992 by a Minister who is sued in the name of the State of New South Wales, which is the first respondent, to Central West Scientific Pty Ltd, which is the second respondent. The grounds of challenge disclosed by the originating process include, among others, that the Minister did not take into consideration certain matters; that the licence was based on confidential intellectual property owned by the applicant; that the licence was granted to facilitate personal monetary gain by the then Minister and certain officers of his Department; and that a claim that the decision was made by someone as delegate of the Minister is false.
2 At the moment I am dealing with a notice of motion filed on 22 November 2010 by the applicant seeking orders to the following effect:
(a) the action be heard by a judge;
(b) the first respondent, the State of New South Wales, show cause why it should not be charged with contempt of court;
(c) leave be granted to the applicant to file summary judgment against the respondents;
(d) alternatively to (c), the respondents give discovery of all documents generated since 1 January 2005 in relation to exploration licences EL6499 and EL7547;
(e) the Crown Solicitor (who is acting for the first respondent) file and serve on the applicant his authority from the Attorney General to draft points of defence on behalf of the first respondent.
3 The first respondent contests the notice of motion except for discovery. The second respondent has not appeared this morning to contest the notice of motion.
HEARING BY A JUDGE
4 The applicant seeks an order that the final hearing of the proceeding be by a judge rather than by a mining commissioner. The first respondent neither consents to nor opposes the proceeding being heard by a judge. As the nature of the proceeding is judicial review, it may well be appropriate for it to be heard by a judge. However, the Chief Judge is charged by statute with the responsibility for assigning mining matters to be heard either by a judge or by a mining commissioner and it is inappropriate that another judge should interfere by order with that process in this case. The applicant has asked it to be noted that he would like the opportunity to be heard if it were proposed to assign the final hearing to a mining commissioner rather than a judge.
CONTEMPT
5 The applicant seeks an order that the first respondent show cause why it should not be charged with contempt of court.
6 The procedure for contempt is set out in Part 55 of the Supreme Court Rules 1970, which applies to this Court by reason of r 5.2(1) of the Land and Environment Court Rules 2007. That procedure does not provide for a show cause order and has not been followed by the applicant. That is sufficient for me to decline to make a show cause order. I would add, however, that the applicant’s evidence read this morning in support of the alleged contempt (set out in his affidavit of 22 November 2010 paragraph 4 and following) largely comprises statements of his belief and appears inadequate to support a charge of contempt.
SUMMARY JUDGMENT
7 The applicant seeks an order that leave be granted to him to file summary judgment against the respondents. I pointed out to the applicant that the Court is able to offer a final hearing date reasonably expeditiously in the new year and that the better course may be to aim towards a final hearing. After discussion, the applicant indicated that he would leave it to me as to which course to follow. In my view, the way forward is to proceed to a final hearing rather than to be diverted by a summary judgment application. I also note that the evidence that has been put before the Court appears to be quite inadequate to support summary judgment.
DISCOVERY
8 The applicant seeks an order that the respondents give discovery of documents in their possession or power since 1 January 2005 in relation to the land the subject of exploration licence EL7547 and also in relation to an earlier exploration licence EL6499 not the subject of this proceeding, which the applicant says related to the same land and was granted to a company related to the second respondent.
9 The first respondent agrees to give discovery of such documents provided, so far as concerns the earlier licence, that it in fact relates to the same land (as to which the first respondent’s counsel does not at the moment have clear instructions). I therefore propose to order the respondents to give such discovery and will mould the order so that documents relating to the earlier licence only need be discovered if they relate to the same land the subject of the later licence.
10 I note that a dispute over confidentiality and privilege relating to some of the documents in question is anticipated and I will make provision for this dispute to be adjudicated before the end of this law term.
AUTHORITY
11 The applicant seeks an order that the Crown Solicitor, who represents the first respondent, file and serve an authority from the Attorney General to draft points of defence on behalf of the first respondent. The only evidentiary basis for this application is found in the applicant’s affidavit of 22 November 2010 paragraphs 15 and 16 where he expresses the belief that the Crown Solicitor is being briefed by junior officers of the Department of Industry and Investment and that the briefing is against the interest of the first respondent. From what I have been told by the first respondent, the Department of Industry and Investment is currently the responsible department for administering the Mining Act. More to the point, I do not think that there is any obligation, on the material before me, for the Attorney General to provide the Crown Solicitor with an authority to draft points of defence. Accordingly, I decline to make the order that is sought.
PROGRESS TOWARDS A HEARING
12 I have discussed with the parties a timetable, with which they agree, which would lead to a hearing as soon as possible after 28 February 2011. I will make orders accordingly.
13 The applicant’s notice of motion filed on 22 November 2010 is dismissed save as indicated earlier in relation to discovery. To give effect to my various decisions, I make orders in accordance with short minutes of today’s date. They include a timetable leading to a final hearing and provision for the parties to forthwith obtain from the Registrar a date for a final hearing as soon as possible on or after 28 February 2011.
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