Land and Environment Court
New South Wales

Medium Neutral Citation:

Martin v State of New South Wales (No 3) [2011] NSWLEC 88

Hearing dates:

19 May 2011

Decision date:

23 May 2011

Jurisdiction:

Civil

Before:

Pain J

Decision:

1.Paragraphs 8, 9 and 10 of the Applicant's summons filed on 21 January 2011 are struck out.

2.Paragraphs 6, 7, 39, 40, 83, 84, 128, and 129 of the Applicant's Amended Points of Claim filed on 27 April 2011 are struck out.

3.The Applicant's Notice to Produce filed on 5 May 2011 is set aside.

4.The Applicant may issue a subpoena to produce documents in the terms identified in his affidavit dated 5 May 2011 Annexure B to Mr Mullard and Ms Cottier and if issued must be filed and served by 12.00pm Wednesday 25 May 2011, returnable before the trial judge on 30 May 2011.

5.The Applicant is to pay the costs of Tellus Resources Ltd in relation to prayer 6 of the Applicant's Notice of Motion filed on 13 May 2011.

6.The Respondent's applications for costs in relation to the Applicant's Notice of Motion filed on 13 May 2011 and the Respondent's Notices of Motion filed on 3 May 2011 and 11 May 2011 are reserved.

7.Parties have liberty to apply on two days' notice.

Catchwords:

Procedure: - whether leave should be given to issue subpoenas - whether pleading should be struck out in part - whether Notice to Produce should be set aside

Legislation Cited:

Land and Environment Court Rules 2007 Pt 4 r 4.2
Mining Act 1992 s 293
Uniform Civil Procedure Rules 2005 Pt 7 r 7.3, Pt 14 r 14.28, Pt 21 r 21.10(b)
Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986

Cases Cited:

Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280

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 (Respondent)
Tellus Resources Ltd (party Applicant sought to join on 19 May 2011)

Representation:

Mr A Martin (Applicant - in person)
Ms C Spruce (Respondent)
Mr J Griffiths SC (Tellus Resources Ltd)
Crown Solicitor's Office (Respondent)
Allsop Glover Pty Limited (Tellus Resources Ltd)

File Number(s):

80001 of 2011

Judgment

1The Applicant, Mr Martin, filed a Notice of Motion on 13 May 2011 heard by me on 19 May 2011. I gave an ex tempore judgment on that day in which I determined not to grant or to dismiss orders sought in prayers 1 - 4 and 6 - 11. Prayer 5 remains outstanding and seeks leave to issue eight subpoenas. Leave is required under Pt 7 r 7.3 of the Uniform Civil Procedure Rules 2005 (the UCPR) because Mr Martin is a litigant in person. These are judicial review proceedings enabled by s 293(1)(q) of the Mining Act 1992 commenced in relation to five exploration licences EL6949, EL7069, EL7214, EL7143 and EL7144 and one exploration licence application ELA4085. The Respondent has filed a bundle of documents on 16 May 2011 in accordance with the court ordered timetable. The matter is set down for hearing on 30 May 2011.

2Section 293(1)(q) 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

(iii)the decision of a decision-maker to cancel an authority, a mineral claim or opal prospecting licence,

3Mr Martin's affidavit dated 5 May 2011 attaches four subpoenas to attend to give evidence and to produce which he seeks leave to issue. Two are subpoenas to attend to give evidence and to produce to Dr Richardson, employed by Geoscience Australia, and Dr Robson, a departmental officer, seeking in identical terms all communications with third parties including Mr Martin and Fugro Airborne Surveys in relation to the Southeast Lachlan airborne geophysical survey (the geophysical survey) area since 1 February 2009. Two are subpoenas to attend to give evidence and to produce to Mr Mullard and Ms Cottier, who appear to be departmental officers, in identical terms seeking all documents and communications held by them in relation to specified exploration licences and exploration licence applications.

4Mr Martin's affidavit dated 13 May 2011 at par 6 alleges that confidential information was leaked by the Respondent to Mr Richards and Tellus Resources Ltd in relation to the geophysical survey. The Applicant states his belief that the most likely persons to have leaked the information was Mr Gilligan in relation to a confidential mineralising model, Mr Watkins in relation the confidential geophysical data and Mr Lewis in relation to confidential geology. He seeks leave to issue subpoenas to attend to give evidence and to produce in relation to those individuals. The subpoenas seek communications concerning the geophysical survey in similar terms to those issued to Dr Richardson and Dr Robson.

5In the same affidavit at par 7 Mr Ward, Chief Executive Officer of Tellus Resources Ltd is referred to. Leave to issue a subpoena to attend to give evidence and to produce is also sought in relation to Mr Ward. The subpoena is in identical terms to those issued to Dr Richardson and Dr Robson.

6The basis for issuing the subpoenas in relation to the geophysical survey is Mr Martin's belief as stated in the submissions and in the voluminous affidavit material to which he referred, that there has been leaking of confidential information which has been used in the geophysical survey.

7The summons filed on 21 January 2011 seeks in prayers 8, 9 and 10 three declarations in relation to the geophysical survey conducted since 2 March 2010 in conjunction with Geoscience Australia, that:

(a)it is in contravention of the Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 and the Mining Act,

(b)it is based on confidential information supplied by the Applicant, Mr Martin, in relation to specified exploration licences and an exploration licence application since July 2002, and

(c)it confirms the economic potential of the region from Cooma to the Far South Coast.

8Parts of the Amended Points of Claim filed on 27 April 2011 also refer to the geophysical survey for each exploration licence challenged.

9Mr Martin has also issued a Notice to Produce filed on 5 May 2011. Documents sought are specified in three paragraphs. The first paragraph refers to the complete final data DVD of the geophysical survey which commenced on 2 March 2011. Paragraph 2 refers to all communications with third parties sought in relation to the geophysical survey since 1 February 2009. Paragraph 3 refers to all documents and other communications concerning specified exploration licences and an exploration licence application the subject of these proceedings.

Respondent's Notice of Motion to strike out Amended Points of Claim

10The Respondent filed a Notice of Motion on 3 May 2011 seeking various orders including that under Pt 14 r 14.28 of the UCPR a large number of paragraphs in the Amended Points of Claim be struck out. This was not pursued earlier when the matter was before the Court for reasons I do not need to go into now but was stood over. The Respondent indicated on 11 May 2011 when the Applicant's Notice of Motion was first before me as duty judge that it would need to press part of that Notice of Motion in response to Mr Martin's application to issue subpoenas concerning the geophysical survey. The Respondent pressed part of its Notice of Motion, seeking orders to strike out prayers 8, 9 and 10 in the summons and related par 6 and 7 (EL6949), 39 and 40 (EL7214), 83 and 84 (EL7143), 128 and 129 (EL7144) of the Amended Points of Claim.

11The declarations sought in prayers 8, 9 and 10 of the summons are set out above. The challenged paragraphs in the Amended Points of Claim are identical and raise the same issue in relation to the five different exploration licences and an exploration licence application referred to in the summons. All paragraphs allege that based on confidential intellectual property and commercially valuable information submitted by Mr Martin, the geophysical survey was undertaken over an area covered by a particular exploration licence. Further, on 9 June 2010 at a public forum at NSW Parliament House the Respondent announced the preliminary results were outstanding.

12The Respondent argues that the Court has no jurisdiction to determine the issues raised by the three declarations sought in prayers 8, 9 and 10. These are judicial review proceedings challenging aspects of considering particular exploration licences and an exploration licence application, inter alia, under s 293 of the Mining Act. There is simply no legal basis for raising in that context the geophysical survey in the manner referred to in the parts of the summons and the Amended Points of Claim sought to be struck out.

13Mr Martin submitted forcefully that the geophysical survey was relevant to his claim and that he had identified in the affidavit material filed by him dated 5 May 2011, 10 May 2011, 13 May 2011 and 18 May 2011 all the relevant circumstances which demonstrated that.

Respondent's Notice of Motion to set aside Applicant's Notice to Produce

14The Respondent also filed a Notice of Motion on 11 May 2011 to set aside the Applicant's Notice to Produce. An affidavit of Ms Ohnesorge solicitor dated 11 May 2011 was read. It attaches a copy of the Notice to Produce and a letter from the Crown Solicitor's Office to Mr Martin dated 9 May 2011 outlining the basis for the objection to the Notice to Produce. The Respondent also read pars 6 to 9 of an affidavit of Ms Ohnesorge dated 17 May 2011 which states that she has been informed by Mr Robson of the relevant departmental section that no final data DVD as referred to in par 1 of the Notice to Produce exists. This was read over Mr Martin's objection on the basis of submissions from the bar table that the statement was false. I consider that is inherently unlikely to be the case.

15The Respondent submitted that the documents sought in par 2 and par 3 are the same as those sought in the subpoenas issued to Dr Richardson, Dr Robson, Mr Mullard and Ms Cottier. The Court made orders for preparation of the matter for hearing on 30 May 2011 that required the Respondent to provide a bundle of documents relevant to the issues in dispute. This has been done. There are no further documents which need be produced and the Notice to Produce is a fishing expedition and impermissible under Pt 21 r 21.10(b) of the UCPR because it does not relate to a fact in issue. No forensic purpose is served in answering it.

16The Applicant submitted in relation to departmental documents sought that the subpoenas and the Notice to Produce to the Respondent and officers in the relevant department were made necessary because of the documents filed by the Respondent which raise new issues in this matter. Documents produced by the Respondent have not been produced pursuant to formal discovery and are therefore not verified by an appropriate person. The persons Mr Mullard and Ms Cottier named in the subpoenas are departmental officers who appear in the documents produced by the Respondent.

Finding

17As the issues raised by the three Notices of Motion before me are interrelated they will be considered together. The subpoenas and the Notice to Produce largely seek the same information (about the geophysical survey and departmental records) from different sources. It is important to state that such instruments may not be used as a fishing expedition, must be shown to serve a forensic purpose in furtherance of issues that can be properly brought before this Court and must not be oppressive or vexatious. Such principles relating to subpoenas are identified in Ritchie's Uniform Civil Procedure NSW , LexisNexis, Sydney, 2005 to date (loose-leaf at Service 53, March 2011), "Uniform Civil Procedure Rules" at [33.4.10] - [33.4.65]. That the same considerations apply to setting aside a Notice to Produce is identified at [21.10.25].

18If the Respondent's Notice of Motion to strike out parts of the pleading is successful, the subpoenas relating to the geophysical survey and par 2 of the Notice to Produce cannot be pressed as there is no matter raised in the summons and Amended Points of Claim which concerns this. The subpoenas and Notice to Produce on this aspect will serve no forensic purpose.

19Under r 14.28 of the UCPR a court can strike out a pleading at any stage if it discloses no reasonable cause of action, inter alia. While Mr Martin did file a great deal of material related to the geophysical survey and sought to explain why it was relevant based on his belief that confidential information has been used in its preparation, he did not address the central issue that requires determination on the strike out application of how it is relevant to any legal ground able to be raised in these judicial review proceedings in this Court. The declarations sought (concerning validity of the geophysical survey, use of confidential information and that the geophysical survey confirms the economic potential of areas of NSW) are not in terms which I consider this Court has jurisdiction to make under s 293(1)(q) of the Mining Act. That is clear simply from viewing the terms of prayers 8, 9 and 10 of the summons. The parts of the Amended Points of Claim sought to be struck out also relate to the geophysical survey. This Court is empowered to make orders in relation to exploration licences, being an authority as defined under the Mining Act. Further, this Court has no jurisdiction in relation to the Uranium Mining and Nuclear Facilities (Prohibitions) Act referred to in par 8 of the summons. I consider the Notice of Motion to strike out the summons and Amended Points of Claim in part should be upheld.

20Consequently, there is no evidentiary basis for issuing the subpoenas to Dr Richardson, Dr Robson, Mr Gilligan, Mr Lewis and Mr Watkins. Paragraph 2 of the Notice to Produce also has no utility in these proceedings.

21The subpoena sought to be issued to Mr Ward Chief Executive Officer of Tellus Resources Ltd can only be relevant if that company is joined as a party. I have refused the application for joinder of Tellus Resources Ltd made in prayer 6 of the Applicant's Notice of Motion filed on 13 May 2011. There is no legal basis in these proceedings for issuing a subpoena to Mr Ward.

22The balance of material sought is departmental documents and the attendance of witnesses from the relevant department. The Respondent has already filed a bundle of documents in compliance with the Court order to do so. In relation to par 1 of the Notice to Produce, there is no such DVD according to the information in Ms Ohnesorge's affidavit despite the submissions from the Applicant that it exists and that the affidavit is false. Further, given that the relevant dates concerning the exploration licences and exploration licence application under challenge are in 2010 or earlier, a final DVD of data (assuming it exists) produced in March 2011 cannot be relevant in these judicial review proceedings. The general terms of par 3 of the Notice to Produce seeking all communications since 1 February 2009 is too wide, oppressive and not demonstrated by Mr Martin to be necessary. The Applicant's Notice to Produce should be set aside.

23Subpoenas to appear and give evidence and to produce documents have been issued to departmental officers Ms Cottier and Mr Mullard. To the extent they have a departmental role to play in the relevant exploration licences, the Applicant is challenging and may possibly have documents beyond those already produced, I will allow a subpoena to produce documents to be issued to them by the Applicant. I have not been satisfied by Mr Martin of any legal basis for issuing a subpoena that they attend to give evidence. In judicial review proceedings, oral evidence of the relevant departmental officers is rarely necessary and the need for it has not been demonstrated by the Applicant's submissions.

Costs

24As I have now ruled on all aspects of the Applicant's and the Respondent's Notices of Motion, I must also consider the Respondent's and Tellus Resource Ltd's applications for their respective costs. Tellus Resources Ltd was successful on 19 May 2011 in resisting an order sought by Mr Martin that it be joined in these proceedings. These are Class 8 proceedings in the Court and the usual rule is that costs follow the event under Pt 42 r 42.1 of the UCPR: see Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 at [4] - [7].

25Mr Martin stated that he is acting in the public interest for the benefit of all people of NSW and no costs order should be ordered against him. In Caroona at [6] - [7] Preston J states that Pt 4 r 4.2 of the Land and Environment Court Rules 2007 which provide that the Court may not make an order against an unsuccessful applicant if satisfied the proceedings are brought in the public interest applies in Class 4 proceedings not Class 8. In any event, that the proceedings are in the public interest is not self-evident from the documents filed. The application to join Tellus Resources Ltd as a party was refused in part because it was an attempt to essentially commence new proceedings raising entirely new legal issues and different exploration licences on land other than those pleaded in these proceedings, which are set down for hearing on 30 May 2011. The application for joinder was doomed to fail in my view. In these circumstances Tellus Resources Ltd should have its costs of opposing the motion for joinder.

26The Respondent seeks its costs of the Applicant's Notice of Motion, its motion to set aside the Notice to Produce and its Notice of Motion to strike out part of the pleadings. It has been largely successful. While I have allowed only two modified subpoenas to be issued to two departmental officers to produce documents, the Applicant's Notice to Produce was set aside and parts of the summons and Amended Points of Claim have also been struck out. It is preferable that at this stage the Respondent's applications for costs are reserved and that these be determined following the final determination of this matter.

Orders

27The Court makes the following orders: