Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Martin v State of New South Wales (No 14) [2012] NSWCA 46
• Hearing dates: 27 September 2011
• Decision date: 21 March 2012
• Before: Basten JA at 1,; Meagher JA at 1,; Handley AJA at 1

Decision

(A)  Matter CA 2011/129207

Appeal from the judgment and orders of Preston CJ of 6 April 2011 dismissed with costs.

(B)  Matter CA 2011/84040 -

(1)  By consent appeal allowed.

(2)  Orders 2, 3, 4, 5 and 6 made by Pain J on 24 February 2011 set aside.

(3)  Order for dismissal of the proceedings consequential on the appellant's failure to provide security for costs by 24 April 2011 set side.

(4)  Leave granted to Mr Martin to file amended points of claim in the Land and Environment Court, verified in accordance with directions given by Pain J on 24 February 2011.

(5)  Highlake to pay Mr Martin's costs of the proceedings in this Court as a self-represented litigant.

(6)  No order as to the costs of the State, Mr and Mrs Savas and Central West.

(C)  Notice of Motion of 15 August 2011

(1)  Notice of motion dismissed.

(2)  Mr Martin to pay the costs of the State, Highlake, Mr and Mrs Savas and Tellus of the motion in respect of prayers 19 and 20.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL - civil - damages - claim for tortious damages raised for the first time on appeal - discussion of Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421; MINING - whether provision of an exploration licence application complying with the Mining Act is a precondition of the exercise of the power to grant an exploration licence - whether non-compliance of exploration licence application with the Mining Act invalidates application and any licence granted in response to it - whether decision-maker's satisfaction as to compliance is sufficient to satisfy precondition - Mining Act 1992 (NSW), s 382; PROCEDURE - civil - judgments and orders - contempt - private litigant bringing contempt proceedings - requirement that charges be formulated with precision - evidence required in support of charge of contempt
• Legislation Cited: Constitution, s 75(v); Corporations Act 2001 (Cth), s 127; Courts and Crimes Legislation Further Amendment Act 2008 (NSW), Sch 19 [43]; Interpretation Act 1987 (NSW), s 48; Judiciary Act 1903 (Cth), s 32; Land and Environment Court Act 1979 (NSW), s 57; Mining Act 1992 (NSW), ss 13, 19, 22, 29, 114, 135, 293, 382; Pt 3; Mining Amendment Act 2008 (NSW); Native Title Act 1993 (Cth), s 24IB; Petroleum Act 1923 (Qld); Supreme Court Act 1970 (NSW), ss 23, 63; Supreme Court Rules 1970 (NSW), rr 6, 7, 8; Pt 55
• Cases Cited: Blair v Curran [1939] HCA 23; 62 CLR 464; Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2010] NSWCA 353; Edwards v Santos Ltd [2010] FCAFC 64; 185 FCR 280; Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421; Martin v New South Wales Minister for Mineral and Forest Resources [2010] NSWLEC 131; Martin v State of New South Wales [2011] NSWLEC 20; Martin v State of New South Wales and Central West Scientific Pty Ltd [2011] NSWLEC 50; Martin v State of New South Wales [2011] NSWLEC 126; Martin v State of New South Wales (No 6) [2011] NSWCA 281; Martin v State of New South Wales (No 7) [2011] NSWCA 282; Martin v State of New South Wales (No 9) [2011] NSWCA 286; Martin v State of New South Wales (No 10) [2011] NSWCA 287; Martin v State of New South Wales (No 13) [2011] NSWCA 296; Owners of Ship "Shin Kobe Maru" The Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; R v Alley ex parte NSW Plumbers and Gasfitters Employees Union [1981] HCA 61; 181 CLR 376; Reid v Howard [1995] HCA 40; 184 CLR 1; Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418
• Category: Principal judgment
• Parties: Anthony Gilbert Martin - Appellant; State of New South Wales - First Respondent; Highlake Resources Pty Ltd - Second Respondent; Mr Ross Savas - Third Respondent; Mrs Kaylene Savas - Fourth Respondent; Central West Scientific Pty Ltd - Fifth Respondent; Tellus Resources Ltd - Sixth Respondent; Mr Tully Araluen Richards - Seventh Respondent
• Representation: Counsel: Appellant self-represented; H El-Hage - First Respondent; P Larkin - Second Respondent; B Goldsmith (sol) - Third and Fourth Respondents; K Williams - Fifth Respondent; Solicitors: Appellant self-represented; I V Knight, Crown Solicitor - First Respondent; HWL Ebsworth Lawyers - Second Respondent; Goldsmiths Lawyers - Third and Fourth Respondents; Allsop Glover - Fifth Respondents
• File Number(s): 2011/129207, 2011/84040

Decision under appeal

• Jurisdiction: 9106
• Citation: [2011] NSWLEC 50; [2011] NSWLEC 20
• Before: Preston CJ; Pain J
• File Number(s): 80004/2011; 80006/2010

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant challenged the grant, under the Mining Act 1992 (NSW), of various mining tenements in New South Wales. The matter came to the Court by way of appeal from a number of decisions of the Land and Environment Court.

On 6 April 2011, Preston CJ of the Land and Environment Court dismissed the appellant's challenge to the validity of Exploration Licence ("EL") 7547. The appellant alleged, among other matters, the invalidity of delegations, applications and decisions resulting in the grant of the licence. The appellant appealed from the decision of Preston CJ to this Court as of right pursuant to Land and Environment Court Act 1979 (NSW), s 57(1).

On 24 February 2011, Pain J stayed the appellant's challenge to the grant of EL 7613 to Highlake Resources Pty Ltd ("Highlake"), ordered the appellant to provide security for Highlake's costs and stayed the matter until the appellant provided such security. This Court granted the appellant leave to appeal from the orders of Pain J. Leave was limited to the order staying the proceedings and the associated costs order in favour of Highlake. During the hearing in this Court, Highlake consented to the appeal being allowed.

On 15 August 2011, the appellant filed a notice of motion in this Court seeking various orders in 10 separate proceedings, naming seven respondents. The parties were only heard in relation to claims for a stay of an order for costs against the appellant, a claim for various respondents and their lawyers to show cause why they should not be charged with contempt, and a claim for exemplary damages against various respondents and their solicitors.

The issues for determination on appeal were:

(i)  whether Preston CJ made an error of law in dismissing the appellant's challenge to the validity of EL 7547,

(ii)  whether the appellant should be entitled his costs in this Court against Highlake in relation to the appeal from the orders of Pain J, and

(iii)  whether any of the orders sought in the notice of motion filed 15 August 2011 should be granted.

The Court held, allowing the appeal in part:

In relation to (i)

1.  The appellant failed to demonstrate any error of law in the judgment of Preston CJ: [13], [20], [44], [46], [50], [53]-[56]

2.  A point cannot be taken for the first time on appeal which, if taken below, might have been answered by further evidence: [23]

Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 applied.

3.  To the extent that the appellant's challenges were dealt with in the decision of this Court in Martin v State of New South Wales (No 9) [2011] NSWCA 286, that decision created a matter of precedent which should be followed by this Court: [27]

4.  The statutory framework provided by the Mining Act does not require that an applicant's failure to provide financial information in the approved form should invalidate the application and any licence granted in response to it: [40]

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 applied.

In relation to (ii)

5.  The appeal from the decision of Pain J having been conceded, the appellant should have his costs in this Court as a self-represented litigant: [61]

In relation to (iii)

6.  There are no proceedings pending in this Court challenging the relevant costs order against the appellant. Thus, there are no proceedings which can be stayed: [68]

7.  Private litigants such as the appellant have standing to bring proceedings in contempt. The charges must be formulated with some precision and supported by affidavit evidence: [72]

8.  A claim for an award of exemplary damages is incompetent in appellate proceedings where the claim has not been tried at first instance: [73]

Judgment

1 THE COURT: On 27 September 2011 the Court heard oral argument in cases brought by the appellant, Mr Martin, against a number of respondents, who had been parties to proceedings in the Land and Environment Court. Mr Martin had challenged grants under the Mining Act 1992 (NSW) of a number of mining tenements. The Court has given judgments disposing of purported appeals as of right, applications for leave to appeal and other procedural matters. There are six outstanding matters, namely:

(1)  an appeal from the judgment of Preston CJ of 6 April 2011 in the Land and Environment Court, brought as of right, matter CA 2011/129207;

(2)  an appeal from the judgment of Pain J in the Land and Environment Court of 24 February 2011, brought by leave granted by this Court on 14 September 2011, matter CA 2011/84040;

(3)  a notice of motion filed on 15 August 2011 seeking, relevantly, three orders, namely:

(a)  a stay of proceedings on orders for costs made by the Land and Environment Court in favour of Ross Savas and Kaylene Savas (matter CA 2011/146657),

(b)  that five of the respondents and their lawyers be called upon to show cause why they should not be charged with contempt of court, and

(c)  exemplary damages against the same respondents and their solicitors.

It is convenient to deal with the matters in that order.

(1)  Appeal from judgment of Preston CJ

2 On 15 September 2010 Mr Martin commenced proceedings in the class 8 jurisdiction, for judicial review of the decision of the Minister for Mineral Resources to grant an exploration licence (EL 7547) to Central West Scientific Pty Ltd ("Central West") on 20 May 2010. From 7 April 2009 the jurisdiction of mining wardens was vested in the Land and Environment Court. Section 293 defined the new jurisdiction of the Court: Courts and Crimes Legislation Further Amendment Act 2008 (NSW), Sch 19 [43]. Relevantly, when Mr Martin commenced his proceedings that section provided:

"293 Jurisdiction of Land and Environment Court

(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 the Minister or a mining registrar in relation to an application for the granting, renewal or transfer of an authority, a mineral claim or opal prospecting licence, or

(iii) the decision of the Minister or a mining registrar to cancel an authority, a mineral claim or opal prospecting licence ...."

3 The term "authority", as defined in the Dictionary to the Mining Act, includes an exploration licence. These are granted under Pt 3 of the Mining Act. An application for such a licence is made under s 13 and s 22 which, in May 2010, conferred power on the Minister to make the grant. Another licence cannot be granted over the same area in respect of minerals which are the subject of an extant authority: s 19(1).

4 The licence related to an area near Yambulla in the State's south east. An exploration licence (EL 6499) granted on 3 January 2006 over this area had lapsed on 13 May 2009. Mr Martin was interested in applying for an licence for the same area. However, on 7 August 2009, when he was not aware that the earlier licence had lapsed, a fresh application covering the area was made by Central West. On 20 May 2010 a delegate of the Minister granted EL 7547 to Central West, for two years.

5 Mr Martin commenced proceedings in the Land and Environment Court, challenging the validity of EL 7547 on a number of grounds. He recognised that proceedings under s 293(1)(q) of the Mining Act were for judicial review, requiring him to show error of law, or the absence of a fact on which the power to grant the licence was conditioned. On 6 April 2011 Preston CJ dismissed the proceedings and ordered Mr Martin to pay the costs of the State and the out of pocket expenses of Central West: Martin v State of New South Wales and Central West Scientific Pty Ltd [2011] NSWLEC 50.

6 Mr Martin appealed against the judgment as of right pursuant to s 57(1) of the Land and Environment Court Act 1979 (NSW) ("the LEC Act").

7 The trial judge identified 11 grounds in Mr Martin's application and sought confirmation that all relevant grounds had been identified. This was something Mr Martin was not willing to give but he could not identify any omissions. He demonstrated the same reluctance in this Court but again was unable to identify relevant omissions.

8 The trial judge heard the case over three days and reserved his decision. His reasons dealt with each ground in turn. These were (1) the disclosure to Central West of confidential departmental and private information relating to the geology of the area; (2) the failure of the decision-maker to consider relevant matters; (3) the invalid delegation of the Minister's function; (4) the invalidity of Central West's application for the licence; (5) invalid execution of the licence by Central West; (6) breach of good faith; (7) the grant of EL 7547 for an area of 36 units, instead of 18; (8) the Department's failure to record on its MinView website the withdrawal of the application for renewal of EL 6499 over the same area; (9) Mr Martin's equitable interest in EL 7547; (10) the Department's preferential treatment of Central West; and (11) bribery of the Minister and public officials.

9 The trial judge gave extensive reasons. Mr Martin, facing the usual difficulties of an unrepresented litigant in a case involving complex legal and factual issues, was not able to identify errors of law which might entitle him to relief in this Court. He was informed by the presiding judge that the Court would not read the whole of the material in the two volumes of the white book (comprising 1354 pages), but would look at every document referred to in argument (Tcpt p 55). That has been done.

10 When Mr Martin's time was running out late in the afternoon he was asked to refer the Court to the page numbers of the other documents on which he relied (Tcpt p 87). He did this for a time and in his last few seconds was invited to put the remaining "pages" in a list to be sent to the Court the next day (Tcpt p 88). The list of "pages" submitted by Mr Martin the next day included Volume 1, Tab 6 (51 pages), Volume 1, Tab 9 (195 pages), all his affidavits, three white folders for other cases already heard, affidavits filed by the respondents, and much besides.

11 The dumping of this unorganised mass of material on the Court was not within the leave, fairly understood in context, for further "page references" to be provided. The Court has not read material that had not otherwise been referred to orally or in writing by Mr Martin, counsel for the State, or the Court below. In any event it was unpromising material in which to find errors of law. The grounds relied on may be addressed seriatim.

(a)  disclosure of confidential information to Central West

12 The trial judge held that the factual basis for this had not been established: at [39]. There was no evidence that the confidential information provided to the Department by Mr or Mrs Martin or their consultants had been given to Central West, and Mr Martin did not identify any of the confidential information in the material supplied by Central West to the Department: [41].

13 The judge declined to infer that departmental officers "must have" passed on confidential information to Central West: [42], [43], [45]. These were questions of fact and Mr Martin's challenge in this Court does not raise any question of law.

(b)  failure to consider relevant matters

14 The area covered by EL 7547 had been within EL 6499 granted to Agricultural Equity Investments Pty Ltd for two years from 3 January 2006 and renewed for a further year. The licence was transferred to Lucknow Gold Ltd (Lucknow) on 15 February 2008. On 26 November 2008 Lucknow applied for a further renewal and the licence was automatically extended while that application was pending. On 13 May 2009, faced with objections based on the lack of exploration activity, it withdrew its application and the licence lapsed.

15 On 7 August 2009 Central West lodged an application (ELA 3759) for an exploration licence over the same area. A departmental minute of 19 May 2010 recommended the grant of the licence. It was granted by Mr Steve Hughes, Acting Team Leader, Eastern Region, Titles, acting as delegate of the Minister, on 20 May 2010.

16 The "relevant matters", which Mr Martin alleged had not been considered by the decision-maker, were the relationship between Central West and Lucknow and the latter's failure to explore the area under EL 6499. These were said to demonstrate that Central West had no intention of exploring the area in good faith. Central West had no prior connection with the area and Mr Martin's argument depends on linking it with Lucknow through Mr Richards, who was the sole director of Central West at relevant times. He had previously been a director of Lucknow and later its consultant.

17 The trial judge declined to infer that Central West had no intention of exploring the area in good faith, or that Lucknow had not intended to do so. He did not consider that Mr Richards' roles in both companies justified either inference.

18 The law does not attribute the acts, omissions and intentions of one company to another merely because a director of the first became a director of the other. Attribution depends on all the facts.

19 In refusing to find that Central West had no intention of exploring the area in good faith, and that the acts, omissions, and intentions of Lucknow should not be attributed to Central West, the trial judge was deciding questions of fact. This Court cannot disturb those findings.

20 Other grounds challenging the validity of the application are discussed at (d) below.

(c)  invalid delegation

21 The decision to grant EL 7547 and execute it on behalf of the Minister was made pursuant to an instrument of delegation by the then Minister dated 8 December 2004 in favour, relevantly, of "Team Leader, Eastern Region".

22 Mr Martin raised what appeared to be seven separate challenges to the validity of the delegation and its exercise by Mr Hughes, namely that:

(1)  Mr Hughes was only the "Acting" team leader;

(2)  he was Acting Team Leader Eastern Region, Titles - Tcpt p 48;

(3)  the delegation was cancelled or withdrawn by a subsequent instrument;

(4)  it was automatically revoked by the appointment of another Minister;

(5)  it was automatically revoked by extensive amendments to the Mining Act;

(6)  there was no evidence that Mr Hughes was a permanent officer of the NSW Public Service;

(7)  there was no evidence as to his state of mind in exercising the power.

23 These grounds, most of which were raised before Preston CJ, were dealt with by him at [53]-[68]. In addressing (1), Preston CJ referred to s 48(2) of the Interpretation Act 1987 (NSW) which deals with the exercise of a power by a person acting in an office: at [54]. He also referred to the judgment of Biscoe J at [18] - see below. Arguably the point was abandoned on appeal: Tcpt, p 48(45). In any event the answer provided by Preston CJ was correct.

24 Point (2) was not considered by the trial judge because it was not taken before him: amended points of claim paras 6, 42, 43, 44. It cannot be taken for the first time on appeal because, if taken below, it might have been answered by further evidence: Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418, 438.

25 Point (3) was dealt with by Preston CJ at [59]. He noted that the amending instrument published on 6 November 2009 added to the existing delegations, but did not purport to cancel or withdraw the earlier instrument. It is not clear whether the ground was pressed in this Court, but in any event the Chief Judge's reasoning was correct.

26 Points (4)-(5) were heard as preliminary questions by Biscoe J and rejected: Martin v New South Wales Minister for Mineral and Forest Resources [2010] NSWLEC 131. Although those proceedings continued on other issues and this decision was interlocutory, for appeal purposes it was final, the rulings being res judicata. On 14 September 2011 this Court dismissed an application by Mr Martin for leave to appeal from these rulings because Biscoe J was correct: Martin v State of New South Wales (No 9) [2011] NSWCA 286.

27 The State was always the proper defendant in those proceedings and it had been substituted as respondent in this Court. Although the cases related to different mining titles and decisions at different dates, they involved the same delegation, the same delegate, the same arguments and the same parties.

28 The decision of Biscoe J created issue estoppels which bound Mr Martin in these proceedings: Blair v Curran [1939] HCA 23; 62 CLR 464, 531-3 per Dixon J. Since the State did not take the point the Court will not do so, but should follow Martin (No 9) as a matter of precedent.

29 In respect of the no evidence points, (6) and (7), the trial judge rejected Mr Martin's challenges because, as the applicant for judicial review, he had the onus of proof: [68], [69]. This was clearly correct: R v Alley; Ex parte NSW Plumbers and Gasfitters Employees Union [1981] HCA 61; 153 CLR 376, 392. Mr Martin has not made good this challenge.

(d)  invalidity of Central West's ELA 3759 and EL 7547

30 This ground, which overlapped the second, alleged that because of its deficiencies ELA 3759 was invalid and there was no power to grant the application. The alleged deficiencies related to the particulars of Central West's financial resources and its proposed program of works. Those were required by the Mining Act, s 13(3)(b) and (d), which, as then in force, relevantly provided:

"13 Applications

...

(2) An application for an exploration licence:

...

(c) must be accompanied by the required particulars ....

(3) The required particulars are as follows:

...

(b) particulars of the financial resources ... available to the applicant ...

...

(d) particulars of the program of works ...."

31 Mr Martin contended that the application was invalid because it did not provide proper particulars of the applicant's financial resources and its program of works. In respect of the latter, the Department had required Central West to submit a better program. This was lodged on 2 February 2010 and was considered satisfactory. On 19 May a departmental minute noted "nil defects" requiring the Minister's discretion. While s 13 of the Mining Act required such particulars to be supplied, it should not be understood to impose an essential condition for the validity of an application, to be determined by a court. Rather, it allowed the Department administering the Act to judge the adequacy of the particulars supplied. This it did. Mr Martin's claim that the program of works was deficient musty be rejected.

32 Section 13 did not identify the financial resources required or the form in which the information about them should be provided.

33 Section 382 relevantly provided:

"382 Applications and tenders generally

(1) An application ... under this Act must be in or to the effect of the approved form.

(1A) If an approved form requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to it or furnished with it, that information."

34 The approved Form 3, in section 11(a), required the following:

"(a) Particulars of available financial resources (verifiable information of these resources must be in the form of:

For Companies - a recent audited set of financial statements or the financial section from the most recent company report/s.

For individuals ...".

35 Central West did not provide a recent audited set of financial statements or the financial section of its most recent company report/s, possibly because it had only recently been incorporated. It provided a letter dated 6 August 2009 from a firm of accountants advising that a Mr Morgan-Hunn would provide "as guarantor" the $38,000 required to fund the exploration program.

36 The trial judge approached this question by considering whether the adequacy of ELA 3759 was a jurisdictional fact but this tends to elide two steps in the analysis. The question concerns the formal validity of an application for the exercise of a statutory power, and the consequence of any defects. The decision-maker did not have to find any facts. The preferred analysis asks whether compliance with the section and the form was a precondition to the exercise of the power to grant an exploration licence and, if so, whether the decision-maker's satisfaction in that regard is sufficient, or whether it is a matter for the court to determine.

37 The trial judge recorded the progress of ELA 3759 through the Department: at [79]-[81]. The financial information was judged to be satisfactory but a security deposit of $10,000 was required and provided.

38 Central West's application complied with s 13(3) set out at [30] above but was not "in" the approved form. Arguably it was "to the effect of the approved form" within s 382(1). Relevant information was supplied, and nothing more may have been available. In this context $38,000 was not a large sum of money.

39 The requirement in the approved form for company accounts was for the benefit of the Department. It could have required Central West to provide further information (s 16) but did not do so. Particulars of those resources must be supplied, but the statutory scheme allows the delegate to judge the adequacy of the resources and the information about them.

40 The decision-maker's discretion under s 22(1), to grant or refuse an application for a licence, allowed him or her to decide whether the information provided was sufficient for the Department's purposes.

41 In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, the plurality said at 388 [91]:

"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference of the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."

42 The statutory framework in the Mining Act does not require the failure of an applicant to provide financial information in the approved form to invalidate the application and any licence granted in response to it. The trial judge concluded that Mr Martin had failed to prove that Central West's application did not comply with approved Form 3: at [109]. This finding has not been shown to be vitiated by legal error, but in any event the analysis in Project Blue Sky requires the conclusion that the deficiencies, if any, did not invalidate the application or the licence.

43 In addition to the matters already referred to, s 135 relevantly provided:

"135 Waiver of minor procedural matters

(1) The Minister may grant ... an authority even though the applicant has failed to comply with a requirement of this Act or the regulations:

...

(c) as to the particulars to accompany any application, ...

(2) This section does not authorise the Minister to grant ... an authority in the case of an applicant who has failed to comply with such a requirement unless the Minister is satisfied that the failure is unlikely:

(a) to adversely affect any person's rights under this Act or the regulations, or

(b) to result in any person being deprived of information necessary for the effective exercise of those rights."

44 The trial judge considered that this power had not been exercised because the decision-maker was not advised of any defect that needed to be waived: at [110]. Section 135 is nevertheless relevant because, in conjunction with the other matters we have mentioned, it shows that Parliament did not intend to invalidate exploration licences granted on defective applications.

(e)  invalid execution of EL 7547

45 The licence was in the form of a deed, executed by Mr Richards, the director of Central West, and his signature was witnessed by Mr Morgan-Hunn. A licence under s 22 has statutory, not contractual, effect and the rights conferred are defined by s 29: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2010] NSWCA 353; 178 LGERA 411 at [86]. It follows that, as the Judge held at [116]:

"... the grant of EL 7547 was made and took effect irrespective of whether CWS executed the deed or not."

46 Central West was a proprietary company and Mr Richards was its only director. As the trial judge also held, s 127(1)(c) of the Corporations Act 2001 (Cth), read with s 127(3), enabled a sole director to sign the deed if he was the company secretary: at [121]. The attesting witness was not described as the company secretary and Mr Martin did not establish that Mr Richards was not: [121].

47 This ground was not established.

(f)  breach of good faith

48 The trial judge rejected this ground because it was not particularised and there was no evidence of bad faith: at [125]. Mr Martin was not able to identify any such evidence. No error, let alone one of law, has been established.

(g)  breach of departmental policy on renewals

49 This ground relied on the Department's published policy that exploration licences will normally only be renewed for 50% of the area covered by the expiring licence. It reflects s 114(6) which, at the relevant time, provided:

"114 Power of Minister in reation to applications

...

(6) The number of units over which an exploration licence may be renewed is not to exceed half the number of units over which the licence was in force when the application for the renewal was made unless the Minister is satisfied that special circumstances exist that justify the renewal of the licence over a larger number of units."

50 The policy stated that the Department will not "normally" allow it to be circumvented by an application "by substantially the same interests as the previous holder" [132]. The Judge held that Mr Richards' positions as a director of Lucknow until 3 December 2008 and then its consultant, and as sole director of Central West did not, without more, establish that the companies represented the same interests.

51 Lucknow was a public company. There was no evidence that Central West was its subsidiary or as to the identity of its shareholders. The Court was not referred to any ASIC search of either company and none could be found in the unindexed White Books.

52 The trial judge held that Mr Martin had not established that the policy applied to Central West. This was a finding of fact which this Court cannot disturb and Mr Martin has failed to establish legal error.

(h)  denial of opportunity to apply for EL 7547 area

53 Mr Martin did not know that EL 6499 lapsed on 13 May 2009. He searched in the Department's website MinView which did not record this information. Unfortunately he did not search in the Department's official database (known as TAS). The trial judge found that TAS was the record of applications and authorities maintained by the Department as required by s 159.

54 There was no evidence that the omission in MinView was other than accidental and no evidence that it was intended to mislead Mr Martin or any other person. Between 13 May and 7 August 2009 this area could have been taken up by any interested person. Mr Martin lost this opportunity because he did not search the TAS database. This provides no basis for invalidating EL 7547.

(i)  Mr Martin's alleged equitable interest in EL 7547

55 An equitable interest in an asset can only exist if the asset exists. Mr Martin's equitable interest, if it exists, cannot be a ground for invalidating the licence.

(j)  alleged preferential treatment of Central West

56 The trial judge held] that there was no evidence to support this ground: at [153]. This was a decision on a question of law, but the Court was not referred to any evidence of preferential treatment. This ground fails.

(k)  alleged bribery of Minister and senior executives

57 Fraud is a ground for judicial review and this ground charged fraud. The trial judge held at [154] that there was no evidence which supported this ground and this Court was not referred to any. The claims in Mr Martin's affidavits do not provide such evidence, and the lack of sworn denials takes the matter no further because there was no case to answer.

58 The appeal failed on all grounds and should be dismissed with costs.

 

(2)  Appeal from Pain J (2011/84040)

59 By points of claim filed in the Land and Environment Court on 1 February 2011, Mr Martin alleged that the grant of an exploration licence (EL 7613) to Highlake Resources Pty Ltd (Highlake) was null and void. On 24 February 2011, on the application of Highlake, Pain J struck out Mr Martin's points of claim: Martin v State of New South Wales [2011] NSWLEC 20. By further orders, she stayed the proceedings until Mr Martin provided security for costs and ordered that the proceedings be dismissed if security were not provided by 24 April 2011. If security were provided, Mr Martin had leave to file amended points of claim accompanied by an affidavit verifying general statements in the amended points of claim and facts supporting his standing. If security were not provided within the specified period, the proceedings stood dismissed. Costs were reserved.

60 Mr Martin did not provide security, but purported to appeal as of right from these orders: he also sought leave to appeal. The State, Highlake, Mr and Mrs Savas, Central West and Tellus Resources Ltd (Tellus) were joined as respondents. Highlake filed a motion to dismiss the appeal as incompetent. On 14 September 2011 the Court made that order but granted Mr Martin leave to appeal limited to the order staying the proceedings until security for costs was provided and associated costs orders in favour of Highlake: Martin v State of New South Wales (No 10) [2011] NSWCA 287. The orders in question were identified in the judgment at [24]-[25]:

24  The "notice of appeal" contains a number of grounds and requests for relief which are unsupportable and should not be the subject of any grant of leave. The leave should be restricted to ground 7 contained in the notice of appeal filed on 12 April 2011 and the relief sought should be limited to that sought in order 4, in so far as it seeks to strike out orders 2, 3, and 4 made by Pain J on 24 February 2011, with necessary consequential amendments to order 5.

25  Costs of the application for leave to appeal should be costs in the appeal.

61 The relevant orders made in the Court below were:

2.  The Applicant is to provide security for costs of the Second Respondent in the sum of $49,378 to the Registrar of this Court within 2 months of the date of this order.

3.  The proceedings are stayed until such time as the security referred to in prayer 2 is provided to the satisfaction of the Registrar.

4.  The proceedings are dismissed if no security for costs in accordance with prayer 2 is provided within 2 months of the date of this order.

5.  If the security as referred to above is provided to the satisfaction of the Registrar, the Applicant may, within 28 days thereof, apply for leave to file amended Points of Claim.

6.  Any application as referred to in prayer 5 must be accompanied by affidavits in the appropriate form, identifying facts which if properly proved support any general statements made in the amended Points of Claim and that the Applicant has standing to bring the claim.

7.  Costs reserved.

62 At the hearing of the appeal on 27 September, Highlake, consented to the appeal being allowed (Tcpt p 30). Orders 2, 3 and 4 should be set aside. Order 5 should also be set aside as it cannot conveniently be varied by this Court. Order 6 should be varied to permit Mr Martin to file amended points of claim, appropriately verified.

63 On 14 September the Court ordered that the costs of the proceedings in this Court up to that date were to be costs in the appeal. Highlake argued that Mr Martin should not obtain an order for costs, relying on its success on other issues on which Mr Martin failed. While the grant of leave was qualified, Mr Martin has enjoyed a substantial degree of success against Highlake. The appeal having been conceded, Mr Martin should have his costs in this Court against Highlake, as a self-represented litigant. It should be noted that on 19 September the Court dismissed Tellus from the proceedings and ordered Mr Martin to pay its costs: Martin v State of New South Wales (No 13) [2011] NSWCA 296.

64 The appeal in CA 2011/84040 should be allowed and appropriate consequential orders made.

(3)  Notice of Motion of 15 August 2011

65 On 15 August 2011, Mr Martin filed a notice of motion seeking various orders in 10 separate proceedings, joining seven respondents. Many of the claims have now been disposed of, others were not pressed and others are no longer relevant. The parties were only heard on the claims in prayers 6, 19, and 20.

(a)  stay

66 Prayer 6 sought a stay of proceedings in matter 2011/146657 in this Court. The background may be briefly stated.

67 On 13 January 2011 Sheahan J ordered summary dismissal of the claim by Mr Martin against Mr Ross Savas and Mrs Kaylene Savas in summons 80006 of 2010: Martin v State of New South Wales [2011] NSWLEC 126. Mr Martin was ordered to pay the costs of Mr and Mrs Savas on the ordinary basis until 23 December 2010 and thereafter on an indemnity basis.

68 Mr Martin purported to appeal as of right from this order. Mr and Mrs Savas challenged the competency of the appeal. On 6 September 2011 the appeal from the substantive orders of Sheahan J was dismissed as incompetent and leave to appeal was refused: Martin v State of New South Wales (No 6) [2011] NSWCA 281. His appeal from the refusal of a stay by Pain J was also dismissed as incompetent: Martin v State of New South Wales (No 7) [2011] NSWCA 282.

69 The solicitors for Mr and Mrs Savas had the costs assessed. The costs assessor's certificates of 4 August 2011 were lodged with the Supreme Court on 19 September 2011 and became enforceable as judgments. On 19 September Mr Martin lodged an application for a review of the assessments, but on 20 September the solicitors for Mr and Mrs Savas obtained a bankruptcy notice which was served on Mr Martin the next day.

70 There are no proceedings pending in this Court which challenge the costs orders made by Sheahan J. The only challenge to the assessment of those costs was before the review panel appointed by the Manager, Costs Assessment, on 29 September 2011. There are no proceedings in this Court which can be stayed.

71 Moreover when the bankruptcy notice was served on Mr Martin the matter passed into the control of the Federal Magistrates Court of Australia. The fate of the bankruptcy notice or any extension of time for compliance is a matter for that Court. The relief sought in prayer 6 of the notice of motion must be refused.

72 Mr Martin must pay the costs of the respondents to the motion who appeared and were heard on 27 September 2011, such costs being those of and incidental to the hearing on that day.

(b)  contempt

73 Prayer 19 sought that, "Respondents Nos 1, 2, 3, 4, & 6 and their solicitors and barristers show cause why they should not be charged with contempt of Court". The respondents identified were the State, Highlake, Mr and Mrs Savas and Tellus.

74 The Court has jurisdiction to deal with contempts committed in the face of the Court, but the jurisdiction to deal with other contempts is properly exercisable in accordance with the procedure provided by Part 55 of the Supreme Court Rules 1970 (NSW). Private litigants such as Mr Martin have standing to bring such proceedings, but the charges must be formulated with some precision and supported by affidavit evidence: Pt 55 rr 6(2), 7, and 8. The Court cannot entertain the claim in prayer 19.

(c)  award of exemplary damages

75 Prayer 20 sought, "... an exemplary damage (sic) of $100 million awarded to the applicant against the respondents Nos 1, 2, 3, 4 & 6 and their solicitors". A claim for an award of exemplary damages is incompetent in appellate proceedings where the claim has not been tried at first instance. The claim was neither pleaded nor raised in any of the proceedings in the Court below and, indeed, it is not clear that the Land and Environment Court would have had power in its class 8 jurisdiction to award such damages. A claim for damages in tort cannot be brought for the first time in this Court.

76 Mr Martin pressed on the Court the relevance of certain statements made by Heydon J in Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 at [62]. The statements relied upon will be noted shortly: first, it is necessary to identify the context in which they were made. Although Edwards was a case involving a dispute over mining tenements, both the facts and the procedural background were far removed from the present circumstances. The underlying claim in Edwards was an attempt by a group of registered native title claimants to negotiate an indigenous land use agreement with Santos and its joint venture partner. A sticking point during the negotiations was whether Santos was entitled to production licences under the Petroleum Act 1923 (Qld), pursuant to prospecting authorities which were said to be "pre-existing rights-based acts" for the purposes of the Native Title Act 1993 (Cth), s 24IB. An attempt to have that issue litigated in the Federal Court was summarily dismissed at first instance. A Full Court refused leave to appeal: Edwards v Santos Ltd [2010] FCAFC 64; 185 FCR 280. There was no appeal from that decision, even by way of special leave, to the High Court. The aggrieved claimants accordingly sought judicial review under s 75(v) of the Constitution.

77 The issue which resulted in the comments referred to by Mr Martin was whether, on judicial review, the High Court could make an award of costs in relation to the proceedings in the Federal Court. The Court held it could, French CJ, Gummow, Crennan, Kiefel and Bell JJ expressing their own reasons for that conclusion at [3]-[5]. Hayne J dissented on that point. The conclusion turned on the proper construction of s 32 of the Judiciary Act 1903 (Cth). Section 32 relevantly provided that the High Court should, in the exercise of its original jurisdiction, grant remedies, "so that as far as possible all matters in controversy between the parties regarding the cause of action, or arising out of or connected with the cause of action, may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters may be avoided": see s 63 Supreme Court Act 1970 (NSW).

78 In rejecting the contention that the High Court had no power under s 32 to award costs in the Federal Court, Heydon J stated at [62]:

"The unsatisfactoriness of the precedent which would be created if the arguments of the petroleum defendants and the State of Queensland were accepted flows partly from the equivalent injustice that would arise in future cases. But it also flows from the temptation which it would create for a certain category of litigant. That category comprises wealthy litigants ... who seek to render fruitless litigation which has been commenced against them by less wealthy litigants, not by achieving success on the merits at a trial, but by other means. One technique is to seek to administer knockout blows before trial by means of strike out applications or summary dismissal applications or stay applications. Another technique is to engage in extensive softening up by making as many interlocutory applications as they choose, and resisting à outrance those of the other side. The goal of the second technique is to cause the claimants to become incapable of providing security for costs and funding the litigation, or at least to conclude that they cannot afford the litigation, and thus to cause them to abandon the litigation before trial. Successes obtained by tactics of the former kind are more likely to come under challenge in this Court than those obtained by tactics of the latter kind. But the propensity of those litigants to engage in tactics of either kind would be intensified by the knowledge that if their resort to these tactics succeeds in the first instance and can only be corrected in s 75(v) proceedings in this Court, they will be immune from compensating those who made claims against them for the costs which the claimants were ordered to pay under costs orders which events in this Court reveal ought not to have been made. The temptation to engage in oppressive proceedings, and the likelihood of its being yielded to, would be increased if those who are in a position to engage in oppressive proceedings think that they will enjoy immunity from costs orders in the Federal Court, even if s 75(v) applications in this Court establish that those oppressive proceedings were not soundly based."

79 Although other members of the High Court did not join in those statements, this is not relevant for present purposes. Whether the High Court could make orders for the costs of proceedings in the Federal Court when quashing the latter's orders is a far step from awarding exemplary damages here, supposing such a claim could be made good. The conferral, by s 23 of the Supreme Court Act, of the amplitude of power necessary for the administration of justice in the State, is not to be diminished by implied limitations: Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 at 420-421. On the other hand, those powers must be exercised according to law and not in blithe disregard of the limitations on the Court's powers and jurisdiction: see Reid v Howard [1995] HCA 40; 184 CLR 1 at 8 (Deane J) and 16-17 (Toohey, Gaudron, McHugh and Gummow JJ). The passage from the judgment of Heydon J in Edwards, read in context, does not support this claim by Mr Martin.

80 The claim in prayer 20 must be refused. There being no outstanding claim for relief pursuant to the notice of motion, it should be dismissed.

Orders

81 The Court makes the following orders:

(A)  Matter CA 2011/129207

Appeal from the judgment and orders of Preston CJ of 6 April 2011 dismissed with costs.

(B)  Matter CA 2011/84040 -

(1)  By consent appeal allowed.

(2)  Orders 2, 3, 4, 5 and 6 made by Pain J on 24 February 2011 set aside;

(3)  Order for dismissal of the proceedings consequential on the appellant's failure to provide security for costs by 24 April 2011 set side;

(4)  Leave granted to Mr Martin to file amended points of claim in the Land and Environment Court, verified in accordance with directions given by Pain J on 24 February 2011;

(5)  Highlake to pay Mr Martin's costs of the proceedings in this Court as a self-represented litigant;

(6)  No order as to the costs of the State, Mr and Mrs Savas and Central West.

(C)  Notice of Motion of 15 August 2011

(1)  Notice of motion dismissed.

(2)  Mr Martin to pay the costs of the State, Highlake, Mr and Mrs Savas and Tellus of the motion in respect of prayers 19 and 20.

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Decision last updated: 22 March 2012