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

1. 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.

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

1. 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

1. 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 New South Wales.

1. Objection to the approval could be lodged and a person who objected to a development, if dissatisfied with the decision of the consent authority, was and is entitled to appeal any approval.

1. In 2009, by virtue of the appeal provisions in the EPA Act, owners of adjoining land instituted an appeal in the Land and Environment Court against the Minister's approval of the project. Mr Mortimer had not objected to the Development and was not an appellant.

1. The aforementioned appeal was heard by two Commissioners of the Land and Environment Court in November and December 2009. The Commissioners of the Court delivered judgment on 7 May 2010 and granted approval to the project, subject to conditions, which altered the conditions imposed by the Minister.

1. Section 5.1.2 of the Project Application, upon which the Minister's approval and the Land and Environment Court judgment is, in part, based, provides:

"The Aboriginal Heritage Project would be conducted in accordance with the requirements of NSW DEC Aboriginal Cultural Heritage Standards and Guidelines Kit (NPWS draft 1997). In addition the study will be undertaken following the new requirements for Community Consultation - Interim Guidelines for Aboriginal Community Consultation - Requirements for Applicants. Accordingly, the study would include:

• Consultation requirements including Notification and Registration of Interests and Preparation of Assessment;
• Consultation with relevant Aboriginal organisations;
• A review of heritage listings and relevant literature;
• A synthesis of local and original archaeology;
• A comprehensive field survey of the zones of proposed impact conducted in accordance with the NSW DEC Aboriginal Cultural Heritage Standards and Guidelines Kit (NPWS draft 1997);
• A significance assessment of cultural heritage sites located within the study area;
• An assessment of whether or not further archaeological investigations are required;
• Recommendations for the mitigation and management of cultural heritage based on the results of the investigation, significance assessment and a consideration of the impacts of the proposed activities; and
• Provision of a draft document to registered Aboriginal stakeholders."

1. The Director-General's requirements in relation to the approval included a requirement for an assessment of the kind to which the Project Application referred. The approval was granted conditional on a need to demonstrate effective consultation with Aboriginal communities in the area in determining and assessing the impact of the development.

1. In July 2007 New South Wales Archaeology Pty Ltd were commissioned to undertake an archaeological and heritage assessment of the project area. That report is before the Court.

1. As amended by the orders of the Land and Environment Court, the approval, as one would expect, deals with certain administrative conditions. The approval also extends for a period of five years, deals with conditions of visual amenity and environmental conditions generally, noise impact at the construction and operation stage, verification of noise impact, land acquisition and criteria therefor, the impact on flora and fauna, requirements for the notification to civil aviation of height for the purposes of safe aviation issues, matters relating to bush fire risk, bunding and spill management, safety management system, traffic and transport impacts, electromagnetic interference, radio communication, soil and water quality impacts, waste generation and management and the monitoring of environmental impact and its auditing.

1. The auditing of the environmental impact includes its impact on bird and bat populations and the like. The approval requires community information to be available both on the internet and otherwise. It also requires a level of consultation and a procedure for the receipt of complaints and a process by which Goldwind will deal with those complaints.

1. Part of the conditions include a requirement in relation to statutory approvals in the following terms:

" 1.7 The Proponent shall ensure that all licences, permits and approvals are obtained and maintained as required throughout the life of the project. No condition of this approval removes the obligation for the Proponent to obtain, renew or comply with such licences, permits or approvals. The Proponent shall ensure that a copy of this approval and all relevant environmental approvals are available on the site at all times during the project.

1.8 The Proponent may elect to construct the project in stages. In this case, these conditions of approval may be complied with separately for each stage, as relevant."

1. Goldwind submits that the foregoing provision requires Goldwind (and any proponent or developer of the Development) to abide by any determination of Native Title and the conditions that would accrue as a consequence thereof.

1. The objections made to the approval were dealt with by the Minister and the Land and Environment Court. There is, further to any such objection, one active Native Title claim in respect of land within the Upper Lachlan Shire, of which Gullen Range forms part. This is a claim by the Gundungurra Tribal Council Aboriginal Corporation, currently before the Federal Court of Australia in matter number NSD 6060/98 and before the National Native Title Tribunal, matter number NC 97/7. That claim has yet to be determined.

1. There is another unregistered Native Title claim by the same Tribal Council. Neither of those claims is in mediation. Neither of them has been determined. Neither of them seems, on the scant material before the Court, to include the land upon which the Development will occur.

Principles for summary disposal

1. As earlier stated, Goldwind moves under UCPR r 13.4, which is in the following terms:

"13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1)."

1. The basis upon which Goldwind seeks an order under UCPR r 13.4 is that the proceedings disclose no reasonable cause of action: UCPR r 13.4(1)(b).

1. The power to dismiss a claim at an interlocutory stage on the basis of there being no reasonable cause of action is an extreme measure, to be exercised only where appropriate and only where the defect in the claim is clearly established. Where the success of the claim before the Court involves an issue of fact that is open to be agitated before the Court, summary dismissal is inappropriate: see General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Peter Kent Development Pty Ltd v ANZ Banking Group Ltd [1980] NSWSC 1; Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713.

1. In Cox v Journeaux, the High Court dealt with a claim involving allegations of conspiracy and fraud. In the course of the judgment, Dixon J said, at 720:

"The inherent jurisdiction of the Court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff. The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped. But the Court is not concluded by the manner in which the litigant formulates his case in his pleadings. It may consider the undisputed facts. Further, it is not limited to cases where there is no dispute of fact."

1. Further to the foregoing, there is the possible effect of s 56 of the Civil Procedure Act, which imposes upon parties and the Court a duty to facilitate the just, quick and cheap resolution of the real issues in dispute.

Consideration

1. The first difficulty that Mr Mortimer faces is that Goldwind is not the developer of the wind farm; Epuron Pty Ltd is. Both companies are part of the Goldwind Group. Nevertheless, an order that would issue against Goldwind will not succeed in halting the Development.

1. Secondly, the Developer of the project has obtained and submitted a report of an expert or experts dealing with any archaeological or land rights significance in the Development and relating to the land upon which the Development will occur. Mr Mortimer disagrees with the effect of that report and the conditions that have been imposed as a consequence.

1. Nevertheless, in order to succeed, Mr Mortimer would be required to show that the approval was without jurisdiction or based upon an error of law. On its face, the documents before the Court suggest that consideration has been given to the rights of the local Aboriginal community in dealing with the approval.

1. On the material before the Court, no arguable basis is shown for an error of law or an error of jurisdiction relating to a failure to take into account Aboriginal Land Rights.

1. Lastly, Mr Mortimer must overcome the difficulty associated with the condition imposed upon the Developer to abide by all conditions and obtain all approvals that are necessary. Even if Mr Mortimer could show an arguable case for a restriction as a consequence of Native Title, it would be difficult, if not impossible, to issue an order injuncting the Developer from any works associated with the approval.

1. The difficulty arises because it would be difficult, if not impossible, to show a balance of convenience favouring such an order in circumstances where, pursuant to the approval, if Native Title were ultimately proved, the actions of the Developer would have to be subject to such Title and/or any restriction associated with protection of sites of archaeological significance.

1. For the foregoing reasons, no reasonable cause of action is claimed in the summons and the motion should be granted.

1. Goldwind also raises lack of jurisdiction as a basis upon which the summary dismissal should proceed. I do not make orders on the basis of any such submission. The submission of Goldwind is not without complication.

1. It is said that Mr Mortimer has no right of appeal in the Land and Environment Court and, as a consequence, is not a person who could stop the Development.

1. As I understand the summons, albeit suffering from a looseness of language associated with the fact that Mr Mortimer is unrepresented, it seeks an order against the Land and Environment Court or to review a judgment of the Land and Environment Court. Without finally determining the question, it would seem s 71 of the Land and Environment Court Act does not prevent prerogative relief or judicial review in the Supreme Court: see Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531.

1. The provisions, it would seem, seek to prevent prerogative relief against a Council or another entity under a statutory duty, other than the Land and Environment Court, being obtained in the Supreme Court.

1. Any prerogative relief against the Land and Environment Court would need to be heard and determined by the Court of Appeal: see s 48 of the Supreme Court Act 1970.

1. In those circumstances, it is most inappropriate for a trial judge of this Court to determine whether s 71 of the Land and Environment Court Act operated in the way suggested by Goldwind. As a consequence of s 48 of the Supreme Court Act, the Court, as presently constituted, is unable to issue the orders sought by Mr Mortimer against the Land and Environment Court. However, at this stage, the Court is not dealing with the issue of such orders.

1. The proposition, as advanced by the defendant, Goldwind, that the Court should transfer to the Land and Environment Court a claim for prerogative relief against the Land and Environment Court was supported by reference to the provisions of s 58 and s 71 of the Land and Environment Court Act. To the extent that the defendant was seeking a remitter to the Land and Environment Court in order for that Court to issue prerogative relief against itself, it would seem, without finally determining the issue, that the provisions of the Act do not go so far: see Re Jarman; ex parte Cook (No 1) [1997] HCA 13; (1997) 188 CLR 595.

1. Alternatively Mr Mortimer is seeking to enforce his rights under the Aboriginal Land Rights Act 1983, in which case, pursuant to the terms of s 20(2) of the Land and Environment Court Act, the Land and Environment Court has the same civil jurisdiction as this Court to enforce any right, obligation or duty conferred or imposed under that Act: see definitions of Planning or Environment Law under s 20(3) of the Land and Environment Court Act. This does not detract from the earlier expressed view as to whether there is a reasonable cause of action, and it is unnecessary for the Court, as presently constituted, to deal with the issue.

1. On its face, there is no reasonable cause of action disclosed by the summons and the summons is dismissed.

1. During the course of submissions I contemplated referring the justiciable controversy, or claimed justiciable controversy, between Mr Mortimer and the Developer to the Federal Court to be dealt with at the same time as the claim for Native Title to which reference has already been made. Such a course would be an awkward one because the wrong defendant has been named and because of the shortcomings in the way in which the claim is expressed (and its nature) that have led to the dismissal of the proceedings. Further, it is not suggested by either party.

1. Mr Mortimer has available to him the capacity to seek to appear and agitate the issues of concern to him in those proceedings, should he so desire.

1. In the proceedings before this Court, no reasonable cause of action has been disclosed and the Court makes the following orders:

(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.

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Decision last updated: 01 March 2013