Martin v Director General, New South Wales Department of Industry and Investment & Ors

CASES CITED: B & L Linings Pty Limited & Anor v Chief Commissioner of State Revenue [2008] NSWCA 187 Martin v New South Wales Department of Industry and Investment [2009] NSWLEC 1447

APPELLANT Mr Ezekiel-Hart (solicitor)

LEGAL REPRESENTATIVES: RESPONDENT Ms C Spruce SOLICITOR Crown Solicitor's Office

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

80001 of 2010 Martin v Director General, New South Wales Department of Industry and Investment and Ors

EX TEMPORE JUDGMENT 1 Her Honour: The Appellant has commenced these Class 8 proceedings seeking various orders in relation to a decision of the Commissioner for Mining (the Commissioner) on 11 December 2009 in separate proceedings (matter no 09/80004, the original proceedings). The Commissioner held in Martin v New South Wales Department of Industry and Investment [2009] NSWLEC 1447 that the proceedings were frivolous and vexatious, disclosed no reasonable cause of action and were an abuse of process and should be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (the UCPR). The Commissioner was considering the Appellant's Notice of Motion dated 11 November 2009 seeking leave to file an amended summons, the Crown's motion to have the proceedings struck out under r 13.4 of the UCPR and the Appellant's application during the hearing for injunctive relief on the same grounds as the summons.

2 The summons commencing these proceedings is an appeal against the decision of the Commissioner in the original proceedings. Such appeals in Class 8 matters are provided for in s 56A of the Land and Environment Court Act 1979 (the Court Act) and may be made in relation to questions of law only. That means the judge sitting on the appeal is not considering whether the Commissioner's decision was correct and is not exercising again the same function the Commissioner exercised when she made her decision that the proceedings should be dismissed. This has been referred to in numerous decisions of judges in this Court considering s 56A appeals from commissioners' decisions in Class 1 proceedings. It is also confirmed by the Court of Appeal in B & L Linings Pty Limited & Anor v Chief Commissioner of State Revenue [2008] NSWCA 187, a case referred to by the Crown.

3 The Appellant represented himself in the original proceedings. He recently instructed a solicitor on Monday this week, 15 February 2010, who has appeared for him today.

4 The original proceedings concerned the refusal to renew two exploration licences and the refusal of two new exploration licences under the Mining Act 1992 in relation to the Appellant and to Sue Martin, who is not a party to the original or these proceedings. I note for completeness that the First Respondent is identified as the Director General of the Department of Industry and Investment and numerous other officers of the department are also joined as parties, I surmise in their personal capacities rather than any official capacity. The legal basis for doing so is unclear as the appropriate respondent is the Crown, being the State of NSW, and could be the relevant Minister administering the Mining Act. That is apparently agreed between the parties and were the matter to proceed further the pleadings would need to be regularised accordingly.

5 The First Respondent has filed a Notice of Motion dated 4 February 2010, which I am determining today, seeking orders that the proceedings are incompetent under s 16(1) of the Civil Procedure Act 2005 (the CP Act) or that the proceedings be dismissed as frivolous and vexatious and/or an abuse of process under r 13.4 of the UCPR. Alternatively, an order that the Appellant have a further opportunity to file an amended summons which identifies an error law in the Commissioner's decision could be made. An affidavit of Ms Kavanagh dated 15 February 2010 attaching the transcript of the proceedings before the Commissioner was read. An affidavit of Ms Hartman dated 4 February 2010 was read which attached a letter dated 14 January 2010 sent by the Department to the Appellant advising of its view that the summons is defective and asking that it be amended and, if not, that application would be made for the proceedings to be struck out.

6 The summons commencing the original proceedings (matter no 09/80004) and the amended summons and Points of Claim filed by the Appellant were considered by the Commissioner on 11 December 2009. In her judgment she sets out the way the proceedings were argued before her in some detail. She was not able to identify any cause of action in the pleadings before her. She delivered an ex tempore judgment which held that the proceedings were frivolous, vexatious and an abuse of process.

7 The Crown submits that no error of law as required by s 56A of the Court Act is identified in the summons filed by the Appellant. I agree. The summons sets out at length the Appellant's description of what he considers happened in the proceedings before the Commissioner, but does not articulate what legal error she made in her decision which could give rise to an appeal. On this basis alone, the Appellant's summons in these proceedings should be dismissed as it does not identify an error of law such that no reasonable cause of action is disclosed, r 13.4(1)(b) of the UCPR.

8 As to whether there is an error of law identified in the summons, the Appellant's solicitor essentially conceded that there was not, but submitted that par 3 of the appeal grounds in the summons was an attempt to articulate a ground that there was a breach of natural justice by the Commissioner during the hearing such that she made an error of law. This was based on her refusal at the hearing of an oral application by the Appellant to file a further application to amend the summons. This denied him a further opportunity to present his case, according to his solicitor. I note the Commissioner was considering a motion of the Appellant to rely on an amended summons and Points of Claim which he had already been permitted to file by directions made earlier by the Court. It was also submitted that the Appellant was not granted an adjournment to obtain legal representation. The error of law could be better articulated if there was an opportunity to file an amended summons in these appeal proceedings, according to the Appellant's solicitor. I do not consider I should grant such an opportunity in the exercise of my discretion given the matters I will now refer to.

9 The Appellant represented himself before the Commissioner. His solicitor today has argued that one of the primary reasons he should have another opportunity to present his case is that he has now sought legal representation. The Appellant sought legal advice late in these proceedings given that he was on notice from mid January 2010 that the First Respondent considered he had not articulated any error of law in the summons. While the difficulties faced by litigants in person are understood, that alone does not justify another round of procedural issues being pursued in these proceedings given the history of the matter to date in both proceedings. He was given opportunity to seek legal advice by the Commissioner and this matter was specifically raised with him by the Commissioner twice during the original proceedings as is clear from the transcript and as also referred to in her judgment at [14].

10 I am also able to exercise the broad powers I have under s 61(1) of the CP Act to make orders that enable the speedy determination of the real issues between the parties. Even if I was minded to make an order affording the Appellant an opportunity to amend this summons to articulate an error of law, as he must do if the matter is to proceed, there would then have to be a determination by a judge as to whether there was an error of law made by the Commissioner when she determined that the original proceedings should be dismissed. If a judge holds that there was an error of law by the Commissioner, the issue of whether the original proceedings should be dismissed would then be remitted for redetermination by the Commissioner in accordance with the law. Given her conclusion that the amended summons and Points of Claim did not disclose any cause of action and that is the same matter she would have to reconsider, this process would be unlikely to cure the fundamental problems with the Appellant's pleadings in the original proceedings.

11 As raised during the hearing of the motion it appears to me that the Appellant's efforts are better directed to commencing fresh proceedings, prepared with the benefit of legal advice. This must identify the Respondent correctly, relate to exploration licences relevant to this Appellant and properly articulate the issues which this Court can hear under s 293 of the Mining Act.

12 Also as discussed during the hearing, under s 137 of the Mining Act there is a three month time limit on commencing proceedings challenging grants and refusals of exploration licences (such licences being authorities as defined in the Mining Act) measured from the date of a gazettal notice. In relation to exploration licence EL 6355 granted to Sue Martin, who is not a party, that licence expired on 18 June 2009 and the relevant gazette notice was 26 June 2009. The Appellant's solicitor submitted that Sue Martin assigned that licence to the Appellant, as he identified in an affidavit sworn in the original proceedings. The Crown informed the Court that the purported assignment occurred after the exploration licence had expired, which is clear from the dates referred to in the affidavit in the original proceedings. Further, any assignment has to be made in accordance with the Mining Act and requires the relevant Minister's consent. No such consent has been granted. The legal basis on which the Appellant can pursue a challenge to that licence is entirely unclear.

13 For EL 6949 no decision has yet been made by the Minister. ELA 3697 was granted to Sue Martin on 23 December 2009. To the extent there can be a challenge by her to the conditions imposed there is still time for her to do so. For ELA 3747, which was refused by the Minister on 24 November 2009, the relevant notice was gazetted on 4 December 2009 and there is still time to commence a fresh challenge in relation to that matter if the Appellant chooses to do so.

14 There does not appear to be any substantial prejudice to this Appellant in challenging matters relevant to the exploration licences granted or refused in relation to him if I make the order that these proceedings be dismissed. I so order.

Orders 15 The Court makes the following orders: 1. The Appellant's summons is dismissed. 2. The Appellant is to pay the First Respondent's costs of the Notice of Motion dated 4 February 2010.

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