Land and Environment Court New South Wales

• Medium Neutral Citation: Martin v State of New South Wales & Anor [2011] NSWLEC 20
• Hearing dates: 17 February 2011
• Decision date: 24 February 2011
• Before: Pain J

Decision

1. The Points of Claim are struck out.

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.

• Catchwords: PROCEDURE - whether points of claim should be struck out - whether security for costs order ought be made
• Legislation Cited: Civil Procedure Act 2005 s 56, s 57; Land and Environment Court Act 1979 s 16, s 21C, s 23; Mining Act 1992 Pt 15, s 120, s 293(1), s 296(p) (repealed); Uniform Civil Procedure Rules 2005 Sch 1, r 14.6, r 14.7, r 14.8, r 14.28, r 42.21
• Cases Cited: 15 Management Pty Ltd v Newstar Sports Management Pty Ltd [2009] NSWSC 1208; Australian Conservation Foundation v The Commonwealth [1980] HCA 53; (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; (2009) 255 ALR 553; Manolakis v Senior Registrar of the High Court of Australia [2008] FCA 506; Martin v Minister for Mineral and Forest Resources [2010] NSWLEC 131; Martin v Minister for Mineral and Forest Resources [2011] NSWLEC 1011; Midcoast Lime Co Pty Ltd v Minister for Primary Industries [2008] NSWSC 331; Nolan v Administrative Appeals Tribunal (1997) 47 ALD 689; Shelton v National Roads and Motorists' Association Ltd [2004] FCA 1393; (2004) 51 ACSR 278
• Texts Cited: Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney, 2005
• Category: Procedural and other rulings
• Parties: Anthony Gilbert Martin (Applicant); State of New South Wales (First Respondent); Highlake Resources Pty Ltd (Second Respondent)
• Representation: Counsel: Mr Martin (Applicant - in person); Submitting Appearance (First Respondent); Mr P Larkin (Second Respondent); Solicitors: HWL Ebsworth Lawyers (Second Respondent)
• File Number(s): 80006 of 2010

Judgment

1 The 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.

2 The 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

...

3 A 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.

Evidence

4 The 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.

5 In 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.

6 Mr 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.

7 Mr 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.

8 The 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.

9 In 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.

10 On 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.

11 The 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.

12 The 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.

13 According 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.

Second Respondent's submissions

14 In summary, the strike out application should succeed because:

(a) the POC do not comply with UCPR r 14.6 and r 14.8;

(b) the POC have "a tendency to cause prejudice, embarrassment or delay in the proceedings" and are "an abuse of the process of the court" within the meaning of r 14.28;

(c) the grounds in the POC disclose no cause of action or ground for judicial review known to the law;

(d) this Court has no jurisdiction to determine claims alleging that the Second Respondent, and others, have improperly used confidential information pilfered from the Applicant to obtain the licence;

(e) this Court has no jurisdiction to determine claims which seek to relitigate the merits of the decision of the Minister to grant the licence to the Second Respondent; and

(f) the claim that the grant of the licence was granted for personal financial gain has no prospects of success and/or is vexatious, embarrassing or an abuse of process.

15 The strike out application is made pursuant to r 14.28(1) or, alternatively, pursuant to the undoubted power of the Court to regulate its own procedure conferred, inter alia, by s 23 of the Land and Environment Court Act 1979 (the Court Act). The principles concerning strike out of a claim on grounds such as abuse of process were recently restated in the Court of Appeal in Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553 at [75] - [77]. Although the power to strike out should be "sparingly employed" and only where the claim is "manifestly groundless" and "cannot possibly succeed", this is one of those cases where the power should be exercised by the Court.

(a) UCPR r 14.6/r 14.8

16 Rule 14.6 provides, so far as is relevant:

"If a pleading alleges or otherwise deals with several matters:

(a) the pleading must be divided into paragraphs, and

(b) each matter must, so far as convenient, be put in a separate paragraph, and ..."

17 Rule 14.8 provides that "a pleading must be as brief as the nature of the case allows." The POC, in whole, do not comply with r 14.6 and r 14.8.

(b) abuse of process/tendency to cause embarrassment, UCPR r 14.28

18 The POC seek a declaration that EL 7613 is null and void under the Mining Act. As best as can be discerned from the language of the POC, the grounds on which the declaration is sought appear to be that:

(1) the Second Respondent obtained the licence with the use of confidential information or intellectual property which had been improperly passed to it by others who pilfered that property/information from the Applicant; and

(2) the Applicant disagrees with the decision of the Minister to grant the licence to the Second Respondent;

(3) the licence was unlawfully granted for the personal financial gain of a previous Minister and Director General of the Department of Industry and Investment (the Director General) ; and

(4) the instrument of delegation used to grant EL 7613 lapsed once Mr Hickey ceased to be the Minister in 2004.

19 The whole POC, as pleaded, disclose no cause of action or ground of judicial review known to the law. In addition:

( a) in relation to issue (1) above, the Court has no jurisdiction to determine claims for infringement of intellectual property;

(b) in relation to issue (2), the Court's jurisdiction is limited to the familiar judicial review function. Mere disagreement with the merits of a decision is not a ground for the invalidity of that decision;

(c) in relation to issue (3), the pleading is defective in that it wholly fails to provide the particulars appropriate to sustain such serious allegations of impropriety and is therefore an abuse of process; and

(d) issue (4) has no reasonable prospects of success.

(c) and (e) no cause of action or ground of judicial review known to law (Issues (1) and (2)) /no merits consideration allowed

20 No proprietary or equitable relief is claimed. Section 293(1) of the Mining Act sets out the jurisdiction of this Court over matters arising under that Act in subsections (a) - (x). Only s 293(1)(q)(i) and (ii) are relevant to the claim for relief sought by the Applicant. In Midcoast Lime Co Pty Ltd v Minister for Primary Industries [2008] NSWSC 331, Rothman J had to determine whether the Mining Warden's Court was exercising an original jurisdiction under s 296 (p) (now repealed) or one confined to error of law or jurisdiction. He concluded at [37] - [45] that it was the latter: where the question is over the validity of a grant, the court is not concerned with the merits of the decision, but with administrative law principles only.

21 The role of this Court is similarly confined in considering s 293(1)(q). The Minister's decision can only be challenged on conventional judicial review grounds such as error of law or want of jurisdiction. Issues (1) and (2) (par 18) above raised by the Applicant do not identify any recognised ground for judicial review, such as error of law or jurisdictional error. Issue (2) is a merits argument which cannot be raised in this Court, for the reasons given in Midcoast.

(d) no jurisdiction to determine theft of intellectual property

22 The jurisdiction of this Court in this case is contained in s 16 and s 21C of the Court Act and s 293(1)(q) of the Mining Act. There is nothing in s 293(1)(q) which suggests that this Court has jurisdiction to hear and determine a claim based on grounds that confidential information or intellectual property owned by the Applicant has been pilfered from him and improperly used by others. Such a claim is not ancillary to any claim within the Court's jurisdiction assuming, for example, the exercise of delegation issue was properly raised.

(f) abuse of process

23 The POC are similar to the pleading considered in Manolakis v Senior Registrar of the High Court of Australia [2008] FCA 506. Mr Manolakis, a litigant in person, made various allegations of criminal conduct and fraud against public officials. Mansfield J held at [8] that the proceedings were an abuse of process. He found they were bound to fail, and this was:

"particularly so when such serious allegations are made against ... public officials or public officers not supported by particulars or adequate facts from which the allegation is made: see Nolan v Administrative Appeals Tribunal (1997) 47 ALD 689."

24 The Applicant's POC allege at par 28 - 29 that the licence was granted by the Minister and the Director General to the Second Respondent to facilitate personal monetary gain by the Minister. There are no particulars or facts pleaded supporting the claim. This aspect of the claim is an abuse of process and is embarrassing and vexatious and should be struck out: see also Shelton v National Roads and Motorists' Association Ltd [2004] FCA 1393; (2004) 51 ACSR 278, especially at [31] - [39].

No reasonable prospects of success on delegation

25 The claim that the instrument of delegation has lapsed is hopeless and doomed to fail. EL 7613 was granted to the Second Respondent on 31 August 2010. The grant was signed by an officer of the Department of Primary Industries under delegation of the Minister. The issue raised in the POC was considered in Martin v Minister for Mineral and Forest Resources [2010] NSWLEC 131 and rejected by Biscoe J.

Applicant lacks standing

26 The Applicant is related to a commercial competitor of the Second Respondent, namely his wife Mrs Martin, and sues to advance her interests in EL 6355 which once applied, in part, to the land the subject of EL 7613. It is necessary for the Applicant to plead the facts which give rise to his standing at common law to maintain these proceedings: Australian Conservation Foundation v The Commonwealth [1980] HCA 53; (1980) 146 CLR 493 and he has not done so.

27 Only par 26 and par 27 constitute such a pleading and allege:

"26. The plaintiff has a legal and equitable interest in exploration licence EL 6355 ...

27. The plaintiff has an equitable interest in the minerals contained in the area now covered by EL 7613 ..."

28 As the Minister has not permitted an assignment or transfer of EL 6355 under s 120 of the Mining Act, the Applicant is not the legal owner of that licence. Further, EL 6355 expired on 17 June 2009.

29 For all these reasons the POC should be struck out, rather than dismissed completely, at this stage.

Security for costs

30 This is commercial litigation, as it is a dispute between commercial mining competitors. Many of the allegations made in the POC are proprietary in nature. The provisions of the UCPR applicable to security for costs as they apply to commercial litigation in the Supreme Court apply to these proceedings in Class 8.

31 Rule 42.21(1)(e) provides that the Court may order the plaintiff to give security for costs where it appears to the Court "that a plaintiff is suing, not for his or her 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".

32 Firstly, the Applicant is not suing for himself but for the benefit of Mrs Martin. Secondly, there is reason to believe that the Applicant will be unable to pay a costs order. The evidence shows that the Applicant has no interest in any exploration licences. It is the Applicant's wife who stands to benefit from the litigation however she has not offered to provide any security or undertaking as to costs, notwithstanding that she owns an unencumbered property in the ACT. There is reason to believe that the Applicant will be unable to pay costs given the evidence in Mr March's affidavit sworn on 11 February 2011. Further his claim is weak and he has numerous costs orders outstanding against him.

Applicant's submissions

33 The Applicant submitted that his POC raise three matters: theft of intellectual property, about which most of his case is concerned; the delegation under which approval for EL 7613 was granted was void; and that he has an equitable/legal interest in the area the subject of EL 7613.

34 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2009] NSWLEC 165; (2009) 170 LGERA 22 is relied on. There is no substance to the submissions made in reliance on r 14.6 and r 14.8. Under the procedures in the Mining Warden's Court, arguments that there was no cause of action would not have been available as the aim of the court was to get to the real issues. The same approach should apply here. The Court must consider s 56 and s 57 of the CP Act and apply these as overriding principles. If this is done there is no basis for the Second Respondent's claims. As the Minister has filed a submitting appearance the case has been proved on the balance of probabilities and the outcome is a foregone conclusion. The Second Respondent can seek further and better particulars if it has a problem with the POC. The individual paragraphs in the POC will not be addressed but the real issue is identified there.

35 The costs claimed are excessive. It is absurd to suggest the Applicant should pay costs. A principle of law is that a party must come with clean hands. No affidavit has been put on stating that there has not been a theft of intellectual property so that the motion should not be granted.

Finding

36 The Second Respondent relies on all subparagraphs of r 14.28 in this application to strike out the Applicant's POC. As identified in its submissions the power should be used sparingly per General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129 where a case is manifestly groundless or obviously untenable quoted in Leerdam at [75] - [76].

37 The POC has 38 paragraphs, all of which were considered in the course of submissions. The drafting is opaque in many of the paragraphs and the issues raised not always clear. The Applicant did not make submissions in response to most of the issues raised by the Second Respondent in support of its motion.

Applicant lacks standing

38 Paragraph 24 of the POC states that there is a valid exploration licence, EL 6355, over part of the area covered by EL 7613. Paragraph 25 states that the Applicant has an equitable and legal interest in EL 6355 and in par 26 an equitable interest in minerals in the area contained in EL 7613. No factual basis for this assertion is contained in the POC. No submissions were made by the Applicant on this issue. As identified by the Second Respondent's submissions and Mr March's affidavit sworn on 11 February 2011, EL 6355 was held by Mrs Martin. There is no evidence of the transfer of the licence to the Applicant, which requires the consent of the Minister under its terms and under s 120 of the Mining Act. Further, according to the gazette notice of the refusal to renew EL 6355 dated 26 June 2009, the licence expired on 17 June 2009 so that it cannot now be a valid exploration licence. These circumstances suggest the Applicant has no relevant interest to satisfy common law principles of locus standi so that he does not have standing to pursue these Class 8 proceedings. The principles of common law standing are identified in Australian Conservation Foundation by Gibbs J at 526 - 530 and Mason J at 547 - 548.

No ground of judicial review identified

39 The Court's jurisdiction is defined by the Mining Act. The Applicant has not identified which part of the Mining Act he relies on. The only provision that could apply in light of the relief claimed is s 293(1)(q). As identified by the Second Respondent this is in similar terms to s 296 (now repealed) of the Mining Act which conferred jurisdiction on the Mining Warden's Court. Section 296 (p), as it was then, gave the Mining Warden jurisdiction to deal with proceedings relating to "any question or dispute as to the validity of the granting of an authority or mineral claim". In Midcoast Rothman J held that this required the court to apply administrative principles relevant to judicial review, not to undertake a merit review of the decision. In Martin v Minister for Mineral and Forest Resources [2011] NSWLEC 1011 Dixon C stated at [2] that the parties agreed that the Class 8 appeal under s 293(1)(q)(ii) was in the nature of judicial review and not a merit hearing. The Applicant was also the applicant in that proceeding. No administrative law errors able to be considered in judicial review proceedings are identified in the POC.

No jurisdiction to determine issues raised/pleading embarrassing

40 Most 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.

41 Further, 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.

42 The 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].

43 As 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.

44 The 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.

45 For all of these reasons par 2 - 31 should be struck out.

No prospects of success on delegation issue

46 Paragraphs 32 - 34 raise issues concerning the delegation under which EL 7613 was granted and state:

32. The alleged instrument of ministerial delegation dated 8 th December 2004 by Mr Kerry Hickey, used to grant Exploration licence EL 7613 by the first defendant, was cancelled or withdrawn when Mr Ian Macdonald MLC, was appointed Minister for Mineral Resources some seven years ago.

33. The alleged instrument of ministerial delegation dated 8 th December 2004 by Mr Kerry Hickey, used to grant Exploration licence EL 7613 by the first defendant is null and void.

34. The alleged exercise of ministerial delegation by a clerical officer to grant exploration licence EL 7613 is null and void.

47 The issue raised in par 32, concerning validity of a delegation, was considered by Biscoe J in Martin v Minister for Mineral and Forest Resources [2010] NSWLEC 131. His Honour held that the delegation was not defective because the appointment of a new person as a Minister does not have the effect of invalidating existing Ministerial delegations at [17]. The decision appears correct, should be applied in the interests of judicial comity and is a complete answer to these paragraphs in the POC. They should be struck out.

No cause of action identified in par 35 - 38

48 The 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.

49 Paragraphs 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.

50 The 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.

51 For 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.

52 For 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.

Security for costs

53 An 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.

...

54 The 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]).

55 Under 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.

56 In 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.

57 The 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.

58 The 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.

59 In 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.

60 I 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.

Order

61 The Court makes the following orders:

1. The Points of Claim are struck out.

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.

**********

Decision last updated: 01 March 2011