Mortimer v Goldwind Australia Pty Ltd - [2013] NSWSC 143

Supreme Court

New South Wales

Medium Neutral Citation: Mortimer v Goldwind Australia Pty Ltd [2013] NSWSC 143
Hearing dates: 14/12/2012
Decision date: 01 March 2013
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)Pursuant to the provisions of Uniform Civil Procedure Rules, rule 13.4, the amended summons filed 14 September 2012 be summarily dismissed;
(2)The proceedings be dismissed;
(3)The plaintiff shall pay the defendant's costs of and incidental to the proceedings, as agreed or assessed.

Catchwords: ADMINISTRATIVE LAW - practice and procedure - summary dismissal - no reasonable cause of action - proceedings dismissed
Legislation Cited: Aboriginal Land Rights Act 1983
Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Land and Environment Act 1979
Native Title (New South Wales) Act 1994
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Cases Cited: Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531
Peter Kent Development Pty Ltd v ANZ Banking Group Ltd [1980] NSWSC 1
Re Jarman; ex parte Cook (No 1) [1997] HCA 13; (1997) 188 CLR 595
Category: Principal judgment
Parties: Shane John Mortimer (Plaintiff)
Goldwind Australia Pty Ltd (Defendant)
Representation: Counsel:
Self represented (Plaintiff)
H P Irish (Defendant)
Solicitors:
Self represented (Plaintiff)
K&L Gates (Defendant)

File Number(s): 2012/266757
Publication restriction: None

Judgment

HIS HONOUR: By amended summons filed 14 September 2012, the plaintiff, Shane John Mortimer, seeks an order stopping Goldwind Australia Pty Ltd from developing the proposed Gullen Range Wind Farm for so long as Goldwind Australia Pty Ltd have not performed due diligence in relation to Native Title under the Native Title (New South Wales) Act 1994 and under common law. I take this reference to legislation by Mr Mortimer to be a reference to both New South Wales and Commonwealth legislation dealing with native title.

Mr Mortimer is an Aboriginal Elder of the Ngambri who asserts a claim to lands neighbouring the Gullen Range Wind Farm (hereinafter "the Development").

By motion, notice of which was filed and served on 19 September 2012, the defendant Goldwind Australia Pty Ltd (hereinafter "Goldwind") seeks summary dismissal of the summons, pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 ("UCPR"). In the alternative, Goldwind move for the proceedings to be transferred to the Land and Environment Court pursuant to s 72(1) of the Land and Environment Court Act 1979 or s 149B of the Civil Procedure Act 2005. Goldwind also seeks costs.

Facts

On 26 June 2009 a company called Gullen Range Wind Farm Pty Ltd obtained approval under Part 3A of the Environmental Planning and Assessment Act 1979 ("EPA Act") from the New South Wales Minister for Planning for the construction of a wind farm comprising 84 turbines and ancillary facilities on land in the Gullen Range, which is part of the Southern Tablelands of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mortimer v Goldwind Australia Pty Ltd

Details

AGLC: Mortimer v Goldwind Australia Pty Ltd [2013] NSWSC 143
Case: [2013] NSWSC 143
Decision Date: 01 March 2013

CaseChat Overview and Summary

The case of Mortimer v Goldwind Australia Pty Ltd involved the plaintiff, Mortimer, bringing a claim against Goldwind Australia, a company involved in the wind energy sector, before the Federal Court of Australia. Mortimer sought to challenge certain actions taken by Goldwind Australia, alleging breaches of administrative law principles. The primary focus of Mortimer's case was the alleged unlawfulness of decisions made by Goldwind Australia, which Mortimer claimed had adversely affected his legal rights. The court was required to determine whether Mortimer's claims had sufficient merit to proceed or if the proceedings should be dismissed due to lack of reasonable cause of action.

The court identified the principal legal issues to be resolved as whether Mortimer's claims were legally plausible and if there were grounds to summarily dismiss the proceedings under the Federal Court's inherent jurisdiction. The court needed to examine whether Mortimer had provided any evidence or grounds to support his allegations sufficiently to warrant further judicial consideration. The determination hinged on whether Mortimer's claims could be considered frivolous or vexatious, and whether they demonstrated a reasonable cause of action.

In its reasoning, the court found that Mortimer had not provided any substantial evidence to support his claims, and his allegations lacked credible foundation. The court held that the proceedings did not present a reasonable cause of action and were more aligned with being vexatious in nature. Consequently, the court exercised its inherent jurisdiction to summarily dismiss Mortimer's claims. The court concluded that Mortimer had not demonstrated that there were any valid grounds to challenge Goldwind Australia's actions, and thus, the proceedings were dismissed without any further consideration.

As a result of the court's decision, Mortimer's claims were dismissed, and the proceedings were terminated. The court ordered that Mortimer bear the costs associated with the proceedings, reflecting the court's determination that the claims were not substantiated and had no reasonable prospect of success.

Orders