Land and Environment Court New South Wales

• Medium Neutral Citation: Martin v State of New South Wales (No 2) [2011] NSWLEC 108
• Hearing dates: 19 May 2011
• Decision date: 19 May 2011
• Jurisdiction: Class 8
• Before: Pain J

Decision

Prayers 2, 3, 4, 6, 10 and 11 of the Applicant's Notice of Motion filed on 13 May 2011 are dismissed

• Catchwords: PROCEDURE - summary judgment - stay of proceedings - transfer to Court of Appeal - joinder of new party - amendment of summons refused
• Legislation Cited: Civil Procedure Act 2005 s 149B; Mining Act 1992; Uniform Civil Procedure Rules 2005 Pt 13 r 13.1, Pt 6 r 6.24
• Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Martin v State of NSW [2010] NSWLEC 247
• 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, non party); Crown Solicitor's Office (Respondent); Allsop Glover Pty Limited (Tellus Resources Ltd, non party)
• File Number(s): 80001 of 2011

EX TEMPORE Judgment

1 The Applicant Mr Martin filed a Notice of Motion dated 13 May 2011 seeking the following orders:

"1. This Notice of Motion and associated matters listed for hearing on the 19 th of May 2011, be heard by His Honour Chief Justice Preston instead of by Her Honour Justice Pain.

2. Leave be granted to the plaintiff to file summary judgment against defendant No 1.

In the alternative to 2 above

3. Stay of Proceeding until the finalisation of the plaintiff's associated 7 Appeals and 2 Summons Seeking Leave to Appeal from this Court to the New South Wales Supreme Court of Appeal.

In the alternative to 2 & 3 above

4. This matter be transferred to the New South Wales Supreme Court of Appeal to be heard together with the said associated 7 Appeals and 2 Summons Seeking Leave to Appeal.

In the alternative to 2 & 3 above

5. Leave be granted to the plaintiff, a litigant in person, to issue the 4 subpoenas as per the drafts annexed (Annexure marked "B") in his affidavit of the 5 th of May 2011 as well as 4 additional summons as per drafts annexed (Annexure marked "C" ) in the

deponent's affidavit of the 13 th of May 2011.

In the alternative to 2 & 3 above

6. Leave be granted to the plaintiff to join Tellus Resources Ltd ACN 144 733 595 in this summons as defendant No 2.

In the alternative to 2 & 3 above

7. Leave be granted to the plaintiff to join Mr Tully Araluen Richards in this summons as defendant No 3.

In the alternative to 2 & 3 above

8. Leave be granted to the plaintiff to join Mr Ross Savas in this summons as defendant No 4.

In the alternative to 2 & 3 above

9. Leave be granted to the plaintiff to join Mrs Kaylene Savas in this summons as defendant No 5

In the alternative to 2 & 3 above

10. Respondent No. 1 is ordered to file and serve on the plaintiff its instructions from either the Attorney- General or the relevant Minister for Mineral Resources.

In the alternative to 2 & 3 above

11. The plaintiff be granted leave to amended his summons to include the following reliefs:

i. A declaration that Exploration Licences EL 7720, EL 7721, EL 7722 and EL 7723 are null and void.

ii The Minister for Mineral Resources to give effect to order( i) above within 14 days of these orders

12. Cost of this application.

13. Any further orders as this Honourable Court deems fit."

2 I note this Notice of Motion incorporates an earlier Notice of Motion which was before me on 11 May 2011. It is not necessary today to refer to any previous motion in the matter. In support of the Notice of Motion, I have before me an affidavit of Mr Martin sworn 13 May 2011. I note for completeness that during the course of today I have been referred to other affidavits Mr Martin filed in the matter, the first being an affidavit of 5 May 2011 and an affidavit of 18 May 2011. A further affidavit sworn by Mr Martin and filed today 19 May 2011 was also referred to. I ruled on prayer 1 this morning at the commencement of the hearing so that I do not need to deal with that now.

Summary judgment

3 Prayer 2 of the Notice of Motion is an application by Mr Martin that summary judgment be entered in this matter. Summary judgment is provided for in the Uniform Civil Procedure Rules 2005 (the UCPR), in particular Pt 13 r 13.1. This rule provides that a court can enter summary judgment if there is evidence of the facts on which the claim, or part of the claim, is based and the court can form a judgment or make such order on the claim as the case requires on a summary basis.

4 Numerous considerations relevant to such applications are identified in Ritchie's Uniform Civil Procedure NSW , LexisNexis, Sydney, 2005 (looseleaf service at Service 54, April 2011) at [13.1.5], including that summary judgment is not to be entered lightly, and only if there is no possible basis for success or a matter is manifestly groundless. That is the very high hurdle that Mr Martin has to overcome to succeed on this part of his Notice of Motion.

5 In his submissions Mr Martin referred to a number of parts of his affidavits that I have identified, and are referred to in the transcript, to support his claim. I understand that he is challenging four exploration licences, EL6949 and EL7214, EL7143 and EL7144. He submitted that admissions have been made to the effect that EL6949 has not been properly granted to Mr Martin. This is accepted by the Respondent. The Respondent makes clear however that no admissions have otherwise been made in relation to the other licences which are the subject of Mr Martin's summons.

6 In the evidence that he referred me to, Mr Martin argued that by inference there had been admissions made about the other exploration licences, that is EL7214, EL7143 and EL7144. I was referred to numerous pages in the affidavits of 13 May and 19 May 2011. Mr Martin endeavoured to make substantive submissions about the bulk of his case in submitting that summary judgment should be entered. I am simply unable to agree with his submissions in the absence of any admissions about any material fact, other than in relation to EL6949, on the Respondent's part.

7 I also agree with the submissions made by Ms Spruce, the Respondent's counsel, that it has not been necessary for points of defence to be filed, given the way the matter has proceeded to date. I note her advice that a Notice of Motion to strike out Mr Martin's summons was filed early in the matter and was successful with the points of claim being struck out. Further points of claim have been filed but no order has been made requiring points of defence to be filed. The absence of the filing of any points of defence cannot be a basis for summary judgment to be entered in these circumstances.

8 I also note Ms Spruce's advice, and it is clear from the Court file, that the matter is ongoing. A bundle of documents has been filed by the Respondent as required in orders made by Preston J. Further affidavits are forthcoming by 24 May 2011 under the existing timetable. In these circumstances it is simply inappropriate for the Court to exercise its discretion to enter summary judgment. Mr Martin is unsuccessful on prayer 2.

Stay of proceedings

9 In prayer 3, Mr Martin seeks a stay of proceedings pending the outcome of other appeals that have currently been lodged by him in the Court of Appeal in relation to other matters before this Court. The main argument Mr Martin presented was the need in his view to consolidate all matters in the Court of Appeal, and he referred to the relevant UCPR rule concerning consolidation, a different issue to the granting of a stay of proceedings. In any event, my understanding of that rule is that it refers to consolidation of proceedings in the same court, that is, a consolidation application could be made in relation to other proceedings in this Court. I am unable to see how I am enabled by that rule to consolidate appeals before another court and I do not think that it can apply in this manner. Further, there is otherwise no basis for consolidation because I accept Ms Spruce's argument that there is no direct connection between this matter and those matters the subject of appeal which would justify a stay of these proceedings pending those appeals.

10 In terms of the application for stay sought in prayer 3, it is not the usual practice for this Court to stay matters pending appeals in other unrelated matters. No basis for exercising my discretion in a different way is apparent. I therefore refuse prayer 3.

Transfer of matter to Court of Appeal

11 Prayer 4 seeks the transfer of this matter to the Court of Appeal. The only section that I am aware of that could possibly allow that to occur is s 149B of the Civil Procedure Act 2005. Section 149B does provide in specified circumstances for matters to be transferred between this Court and the Supreme Court. It is my understanding that that section does not provide me with any power to transfer any matter to the Court of Appeal, which is not the same as the Supreme Court. I simply do not have the power to so order. Prayer 4 is refused.

12 I will leave prayer 5 seeking leave to issue subpoenas for the moment.

Joinder of party

13 Prayer 6 is an application to join Tellus Resources Pty Ltd (Tellus), the matter which its counsel Dr Griffiths opposed in argument earlier today. Mr Martin spoke in support of the joinder on the basis that Tellus was a relevant party in these proceedings. Mr Martin referred to additional matters pleaded before this Court in other matters being proceedings numbered 80004 and 80006 of 2010 where he said Tellus had been joined, and referred to an appeal in one of those matters. I note that Dr Griffiths identified that the appeal before the Court of Appeal which names Tellus must be incorrect, because Tellus was not in fact a party when that matter was heard before this Court.

14 Mr Martin once again went extensively to other affidavit material to argue that Tellus was a relevant party in this matter. It appears that Tellus is the holder of numerous exploration licenses on land which immediately adjoins land where Mr Martin has interests, or has had interests, in exploration licences. There seems to be no direct connection of any kind between exploration licences which Tellus holds and those which are the subject of Mr Martin's summons in these proceedings. From a legal point of view there appears to be no relevant connection between these matters.

15 I agree with Dr Griffiths' submission that in order to obtain an order for joinder of a party under Pt 6 r 6.24 of the UCPR, Mr Martin has to demonstrate that a party is necessary to the determination of all matters in dispute in the proceedings. It appears that the case against Tellus is a new one and raises additional exploration licences not currently included in the summons before me. That is confirmed by the fact that, as I understand it, prayer 11(1) of this Notice of Motion sets out additional amendments to the summons which Mr Martin seeks to make. These identify an additional four exploration licences which I understand are held by Tellus, which relate entirely to land next to the land which is the subject of Mr Martin's summons. In these circumstances Mr Martin has failed to demonstrate that Tellus is a party necessary for the resolution of these proceedings as presently constituted.

16 Another highly relevant consideration is that this matter has been set down for hearing on 30 May 2011 by the Chief Judge. I anticipate that if I was to join Tellus there would need to be amendment to the summons, as is clear from prayer 11. I anticipate there would be additional evidence and further points of claim would be necessary. As night follows day that would lead to an application seeking vacation of the hearing dates. A great deal of effort has gone into preparing this matter for hearing. That is another reason why Tellus should not be joined. I therefore do not grant leave to Mr Martin to join Tellus as a party in these proceedings, and he is unsuccessful on prayer 6.

17 I do not need to deal with prayers 7, 8 and 9 as I have held earlier today that these cannot be raised by Mr Martin in light of earlier case management directions made by me.

Service of instructions

18 That brings me to prayer 10, which is an order sought that the Respondent file and serve instructions from either the Attorney-General or the relevant Minister for Mineral Resources. I am unclear after hearing argument precisely what Mr Martin seeks. To the extent I understand what Mr Martin seeks, he wants an indication of who in the relevant department is instructing the Crown Solicitor's Office, the solicitors on the record. While told by Mr Martin that Dr Sheldrake is no longer the head of the department I do not see any basis in the evidence presented why such an order should be made. I was referred to a decision of Biscoe J in proceedings 80004 of 2010 ( Martin v State of NSW [2010] NSWLEC 247), also involving Mr Martin and the Respondent in relation to various matters under the Mining Act 1992, where a similar not identical issue was raised at [11] relating to authority. There is nothing in that decision that suggests that it is appropriate that I make the order sought. Prayer 10 is refused.

Amendment of summons

19 Prayer 11, as I have already foreshadowed, is an application to amend the summons. Mr Martin says that even if Tellus is not joined that the summons should be amended. Adopting the principles that I have been referred to in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175, the High Court has emphasised the need to ensure that matters before a court are efficiently and expeditiously dealt with. It is not appropriate that I grant leave to amend the summons for the reasons I have already stated in relation to the importance of maintaining the hearing date, and further that commencing what are effectively new proceedings within these existing proceedings is not appropriate. That applies also to prayer 11(2) which concerns the Minister for Mineral Resources. I refuse that prayer also.

20 That leaves me still to rule on the application of Mr Martin to issue eight subpoenas (prayer 5), the Respondent's Notice of Motion to strike out part of Mr Martin's Amended Points of Claim and summons and also the Respondent's Notice of Motion to set aside the notice to produce issued by Mr Martin. A separate judgment will be published on Monday in relation to those matters.

Order

21 Prayers 2, 3, 4, 6, 10 and 11 of the Applicant's Notice of Motion filed on 13 May 2011 are dismissed.

Decision last updated: 01 August 2011