Martin v State of New South Wales & Anor - [2011] NSWLEC 20 - NSWLEC 2011 case summary — Zoe

NSWNSWLEC

Martin v State of New South Wales & Anor

[2011] NSWLEC 20

Land and Environment Court (NSW)|2011-02-17|Before: Pain J, Mr P

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2011-02-17

Before

Pain J, Mr P

Catchwords

(1980) 146 CLR 493 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2009] NSWLEC 165
(2009) 170 LGERA 22 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
(1964) 112 CLR 125 Kenneth A Pethers v Minister for Agriculture [2010] NSWSC 805 Leerdam v Noori [2009] NSWCA 90

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Original judgment source is linked above.

Catchwords

(1980) 146 CLR 493 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2009] NSWLEC 165(2009) 170 LGERA 22 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69(1964) 112 CLR 125 Kenneth A Pethers v Minister for Agriculture [2010] NSWSC 805 Leerdam v Noori [2009] NSWCA 90

Judgment (21 paragraphs)

[1]

Judgment 1The Applicant, Mr Martin, has filed proceedings in Class 8 of the Court's jurisdiction seeking a declaration that exploration licence 7613 (EL 7613) held by the Second Respondent is null and void. The Second Respondent has filed a Notice of Motion dated 11 February 2011 seeking an order that the Applicant's Points of Claim (POC) be struck out or summarily dismissed, a security for costs order and an order in relation to repleading. The First Respondent who issued the exploration licence has filed a submitting appearance. The Applicant is representing himself. 2The POC do not state which provision of the Mining Act 1992 is relied upon in commencing these proceedings. The Court's jurisdiction under the Mining Act is set out in Part 15. The relief sought in the summons concerns the validity of an exploration licence so that jurisdiction may (assuming a proper case is articulated) be founded in s 293(1)(q)(i) and (ii) of the Mining Act which states: (1) The Land and Environment Court has jurisdiction to hear and determine proceedings relating to any of the following matters: ... (q) any question or dispute as to: (i) the validity of an authority, mineral claim or opal prospecting licence, or (ii) the decision of a decision-maker in relation to an application for the granting, renewal or transfer of an authority, a mineral claim or opal prospecting licence, or ... 3A fundamental issue that arises for the Applicant on this motion is whether he has standing to commence this action. The Mining Act does not contain a broad standing provision. The Applicant has not indicated what section he relies on for his standing to sue in this matter. In the absence of such a provision the Applicant must demonstrate that he satisfies common law principles of standing to sue. This issue will be further considered below.

[2]

Evidence 4The Second Respondent read three affidavits of Mr Trent March, solicitor for the Second Respondent, two sworn on 11 February 2011 and one sworn on 14 February 2011. In his shorter affidavit sworn on 11 February 2011, Mr March states that he has day to day carriage of this matter. On 17 January 2011, Registrar Gray directed as follows: the Applicant to file and serve POC by 1 February 2011, the Second Respondent to file any strike out motion by 11 February 2011, such motion to be returnable on 17 February 2011, the Second Respondent to file and serve any points of defence by 22 February 2011, and the matter listed for a further telephone directions hearing at 9:15am on 7 March 2011. A copy of the Applicant's POC are attached to the affidavit. Additional correspondence between the parties is also attached. 5In his second affidavit sworn on 11 February 2011, Mr March states that on 24 April 2010, the Second Respondent lodged exploration licence application 3967 (ELA 3967). On 31 August 2010, ELA 3967 was determined by the granting of EL 7613 for group 1 minerals which are known as metallic minerals. The Applicant commenced proceedings by summons on 13 December 2010 seeking a declaration that EL 7613 is null and void and an order that the Court direct the Minister for Mineral Resources (now called the Minister for Primary Industries) (the Minister) to cancel EL 7613 within 14 days of the declaration. A copy of EL 7613 attached. 6Mr March is of the view that the Applicant has commenced proceedings on behalf of Mrs Sue Delores Martin. The Applicant alleges a legal and equitable interest in exploration licence 6355 (EL 6355) for group 1, 2, 5 and 10 minerals over part of the area covered by EL 6713. This licence was granted to Mrs Martin, the wife of the Applicant, by the determination of exploration licence application 1946 (EL 1946) on 30 November 2004. On 3 July 2007, the Minister granted Mrs Martin's application for renewal of EL 6355. On 28 October 2008, Mrs Martin lodged another application to renew EL 6355. On 26 June 2009, a notice was published in NSW Government Gazette No 93 to the effect that the application for renewal of EL 6355 had been refused. The gazette notice states that the licence (termed authority) ceased to have effect on 17 June 2009. 7Mr March also believes that the Applicant is unable to pay costs if ordered to do so. The Applicant's residence in the Australian Capital Territory (ACT) was purchased by Mrs Martin on 18 May 2005 and is registered in her name only. There is no mortgage over the property according to the transfer and certificate of title attached to the affidavit. Name searches were conducted in respect of any property held by the Applicant in the ACT and New South Wales. The Applicant does not have any properties registered in his name. The Applicant attached to his summons filed on 13 December 2010 emails to Mr Jan Vestrum requesting money to conduct litigation regarding EL 6355 and other exploration licences. Mr March also states that the Applicant has five outstanding costs orders against him including costs that have been made against him in these proceedings as a result of orders made by Sheahan J on 13 January 2011 and by me on 1 February 2011. The costs liable to be paid to the former Third and Fourth Respondents as a result of Sheahan J's orders is $8,762.75, according to the affidavit of Nancy Lentz sworn on 31 January 2011 read on the successful motion seeking orders removing the Third and Fourth Respondents. 8The Second Respondent seeks a security for costs order against the Applicant in the sum of $49,378, which is 70 percent of the total $62,024 costs likely to be incurred by the Second Respondent in Mr March's estimation. These figures are conservative as in Mr March's experience, independent costs assessors have generally calculated party/party costs to be 75 percent of total costs incurred and include 100 percent of barrister's fees and other disbursements in any bill of costs that has been prepared. A breakdown of Mr March's estimate of legal costs the Second Respondent is likely to incur in these proceedings following the strike out motion on 17 February 2011 is provided. By letter dated 14 February 2011, the solicitor for the Second Respondent notified the Applicant that the Second Respondent will be seeking an order for security for costs as a result of reviewing the material produced by the First Respondent. The letter sought the Applicant's advice as to whether he agrees to the provision of security for costs in an amount to be discussed. 9In his affidavit sworn on 14 February 2011, Mr March annexed documents produced to the Court by the First Respondent pursuant to a Notice to Produce including an instrument of delegation dated 8 December 2004, an instrument of delegation dated 30 September 2009 and an extract from NSW Government Gazette No 160 dated 6 November 2009. 10On 11 February 2011, Mr March emailed to the Applicant the Second Respondent's Notice of Motion and affidavits to strike out/summarily dismiss the Applicant's POC filed on 1 February 2011. Further correspondence between the Applicant and Mr March is annexed to his affidavit. 11The Applicant sought to rely on three affidavits sworn by him which I ruled were irrelevant to the consideration of the motion in the course of the hearing. Two were filed in support of earlier motions already heard in the Court and dealt largely with steps taken in the proceedings. One dated 6 January 2011 was argued to contain evidence to support claims of theft of intellectual property in the POC. As this motion is to determine whether on its face the POC should be struck out this was also not relevant to my consideration. 12The Second Respondent issued a Notice to Produce dated 11 February 2011 which sought the financial records of the Applicant including income tax returns. The notice was called on before me at the hearing. The Applicant stated that the notice was null and void because it sought taxation records and only the High Court can deal with taxation matters. I ruled that submission lacked any legal foundation and the notice appeared to be valid. The Applicant still declined to produce any documents in answer to the notice. 13According to Sch 1 of the Uniform Civil Procedure Rules 2005 (UCPR), the Civil Procedure Act 2005 (the CP Act) and the UCPR apply to proceedings in Class 8. Rule 14.28(1) provides: (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court.

[16]

No jurisdiction to determine issues raised/pleading embarrassing 40Most of the POC (par 2 - 23 and par 28 - 31) contain allegations of theft of intellectual property and misuse of that information by several persons including the Director General and the Minister under whose delegation the licence was granted. Regardless of whether a cause of action can be made out in relation to such a claim, this Court lacks jurisdiction to consider such claims under s 293(1) of the Mining Act. As submitted by the Second Respondent no such jurisdiction is conferred directly under s 21C of the Court Act. The issue does not arise as a matter ancillary to any other issue within jurisdiction, assuming an issue of delegation was properly raised in the POC, so that s 16 cannot apply to found jurisdiction. 41Further, in relation to whether a cause of action is disclosed in the POC concerning the theft of commercial property, for the reasons stated by the Second Respondent the matters as pleaded do not disclose sufficient facts to establish that there is such a cause of action. 42The form of the POC in par 2 - 28 (and the balance of the POC) is embarrassing in the sense referred to in Kenneth A Pethers v Minister for Agriculture [2010] NSWSC 805 at [22] by Pembroke J as follows: The second ground on which the amended Statement of Claim should be dismissed is that its language, syntax, complexity and confusion of concepts and ideas, do not reasonably permit any intelligent and meaningful response. It is a gallimaufry - difficult to understand and impossible to disentangle. It is legally "embarrassing" in the sense that it is unintelligible, ambiguous, vague or too general. It would be oppressive and unfair to require the Minister to respond to it: Kirby v Sanderson Motors Pty Limited [2002] NSWCA 44; (2001) 54 NSWLR 135, Hodgson JA (Mason P and Handley JA agreeing) at 142-3; McGuirk v The University of New South Wales [2009] NSWSC 1424 per Johnson J at [21] - [35]; Gunns Limited v Marr [2005] VSC 251, Bongiorno J at [57]; Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 per Tamberlin J at [18]. 43As required by r 14.7 of the UCPR, there is also a failure to plead material facts which would be needed to underpin the serious allegations of obtaining personal financial gain made against the Director General and a previous Minister in numerous paragraphs throughout the POC, including 22, 23 and 28. 44The POC alleges in par 29 and par 30 that there is an unspecified business plan underpinning decisions under the Mining Act by the Director General which is criticised. This is similar to a pleading considered in Shelton referred to by the Second Respondent, also cited in Pethers . Tamberlin J considered at [31] - [36] that the pleading before him was deficient because it failed to identify material facts which would provide a basis for an assertion that there was an overall plan. Paragraph 31 states that EL 7613 is null and void. 45For all of these reasons par 2 - 31 should be struck out.

[18]

No cause of action identified in par 35 - 38 48The issue raised in paragraphs 35 - 36 of the POC is difficult to understand but appears to be that the geological information used to select the exploration area by the Second Respondent was not appropriate. No cause of action under s 293(1) is disclosed. These paragraphs should be struck out. 49Paragraphs 37 - 38 name various people and allege they obtained confidential information in relation to a regional geophysical survey conducted in March 2010 by Geoscience Australia which is being used illegally under the Mining Act. It is difficult to understand the nature of the complaint made in these paragraphs but I surmise that the Applicant is alleging a misuse of confidential information belonging to him for the purposes of developing the specified geophysical survey which the Second Respondent and others are relying on. That survey appears to be a public document prepared by Geoscience Australia (an agency within the Resources, Energy and Tourism portfolio of the Australian Government that carries out geoscientific research and produces topographic maps and satellite imagery). The Second Respondent submitted that any claim for confidentiality for matters now public can no longer arise. Such a claim if it exists is not within this Court's jurisdiction under the Mining Act. These paragraphs should also be struck out. 50The issues of inadequate form raised by the Second Respondent's counsel under r 14.6 and r 14.8 apply to all the substantive paragraphs in the POC. 51For completeness I refer to the Applicant's argument that the application of s 56 and s 57 of the CP Act provide an answer to the Second Respondent's submission. In my view the application of these sections favours the Second Respondent's submissions. 52For the many reasons identified above I consider the Applicant's POC should be entirely struck out. This means that theoretically the Applicant may file another POC, subject to whether I make orders requiring security for costs to be provided. Given that the Applicant appears to lack standing and is seeking to raise serious allegations against various people including a previous Minister in relation to the execution of his functions under the Mining Act, conditions which must be satisfied before any further POC can be relied on will be ordered.

[19]

Security for costs 53An order for security for costs in the amount of $49,378 based on the estimate of costs in Mr March's affidavit is sought, with a further order that proceedings be stayed until this is provided. Such orders are generally made where the Court is concerned that an applicant will be unable to meet a costs order in the event the applicant is unsuccessful. This case concerns private interests under the Mining Act as between rival competitors seeking approval under that Act. The circumstances in which a security for costs order can be made are identified in r 42.21 of the UCPR: 42.21 Security for costs ... (e) that a plaintiff is suing, not for his or her own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so, the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant's costs of the proceedings and that the proceedings be stayed until the security is given. ... 54The Court has wide discretion whether to make a security for costs order where these defined circumstances arise. That the circumstances in r 42.21 arise does not mean that an order for security for costs must be made, but is a relevant factor to consider in the exercise of the Court's wide discretion. Numerous authorities confirm the wide jurisdiction of superior courts in considering security for costs applications where the circumstances in r 42.21 arise and more generally (per Ritchie's Uniform Civil Procedure NSW , LexisNexis, Sydney, 2005 to date (loose-leaf service at Service 52, January 2011), "Uniform Civil Procedure Rules" at [42.21.5] - [42.21.10]). 55Under r 42.2(1)(e) the issue arises of whether the Applicant is taking these proceedings on behalf of another person. The evidence shows that Mrs Martin was the holder of EL 6355 which has now lapsed. It appears that if anyone has some kind of claim relating to EL 7613 it is Mrs Martin, not the Applicant. In the absence of evidence that any interest was assigned to him by Mrs Martin, the Applicant can have no legal interest in EL 6355. I therefore accept the Second Respondent's submission that the Applicant is suing on behalf of another person. Mrs Martin stands to benefit from this litigation and has not offered to provide any security in relation to costs. 56In relation to whether there is reason to believe that the Applicant cannot meet a costs order, nothing is known of the Applicant's financial position as he has declined to answer the Notice to Produce issued by the Second Respondent concerning his financial records. The documents referred in the notice are personal financial records that are commonly sought in order to establish someone's financial standing. The notice appears to be proper and reasonable on its face. Apart from his objection to answering the notice on a ground I rejected, no explanation was forthcoming from the Applicant as to why the records sought could not be produced by him. The Applicant has not filed any evidence suggesting that he can meet a costs order if one is made against him. 57The approach in 15 Management Pty Ltd v Newstar Sports Management Pty Ltd [2009] NSWSC 1208 at [39] is appropriate in these circumstances. Nicholas J considered that the unexplained failure to provide information about a plaintiff's financial situation to support an objection to a security for costs order raised a real chance that it would be unable to pay a defendant's costs. Where no probative evidence of the Applicants' financial position is provided I conclude that it is reasonably possible he will not be able to meet a costs order made in favour of the Second Respondent. 58The Applicant stated that he relied on Caroona but did not explain how this decision is relevant. That case did not consider security for costs and is not therefore relevant to the issues I must consider. Other relevant factors to consider are that there is presently no credible case identified in the POC, which I have struck out. There are a number of outstanding costs orders against the Applicant. The Applicant's submission that the Second Respondent must put on evidence to demonstrate it has "clean hands" is misplaced. 59In the exercise of my discretion and taking into account r 42.21(1)(e), a security for costs order in the amount sought by the Second Respondent is warranted. These costs are not excessive. An order that the proceedings be stayed until provision of the security for costs should also be made. 60I have determined that the POC should be struck out. This leaves the Applicant with an opportunity to replead if he so chooses after he has complied with the security for costs order. Leave to replead will be conditional on the Applicant swearing an affidavit in admissible form setting out the facts relied upon to found standing to bring these proceedings. If serious allegations of personal financial gain made against a previous Minister and others administering the Mining Act are raised in a form of administrative law review that this Court can consider, material facts underpinning any such claim must also be identified in an affidavit. No claim based on theft of intellectual property is available to the Applicant in these proceedings. Any new POC must identify grounds of administrative law which this Court can determine in judicial review proceedings under the Mining Act.

Martin v State of New South Wales & Anor

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Judgment (21 paragraphs)

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