Land and Environment Court
New South Wales

Medium Neutral Citation:

Martin v State of New South Wales [2011] NSWLEC 129

Hearing dates:

1 February 2011

Decision date:

01 February 2011

Jurisdiction:

Class 8

Before:

Pain J

Decision:

The Court makes the following orders in relation to the Applicant's Notice of Motion filed on 25 January 2011:

1.Prayer 1 is made.

2.Prayers 2,3,4,5 and 6 are dismissed.

3.No action in relation to prayer 7.

4.The Applicant is to pay the First, Third and Fourth Respondents' costs of the motion.

5.Costs of the motion in relation to the Second Respondent are reserved.

6.The Applicant's application for stay of Pain J's orders made today refused.

Catchwords:

PROCEDURE - whether to make various procedural orders sought by the Applicant

Legislation Cited:

Civil Procedure Act 2005
Mining Act 1992
Uniform Civil Procedure Rules 2005 Pt 13 r 13.4(1)(b), Pt 42 r 42.5

Cases Cited:

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225
Calderbank v Calderbank [1975] 3 All ER 333
New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) 52 ATR 602
Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103

Category:

Procedural and other rulings

Parties:

Anthony Gilbert Martin (Applicant)
State of New South Wales (First Respondent)
Highlake Resources Pty Ltd (Second Respondent)
Ross Savas (former Third Respondent)
Kaylene Savas (former Fourth Respondent)

Representation:

Mr A Martin (Applicant - in person)
Ms J Kavanagh (Solicitor - First Respondent)
Mr T March (solicitor - Second Respondent)
Mr B Goldsmith (solicitor - former Third and Fourth Respondents)
Crown Solicitor's Office (First Respondent)
HWL Ebsworth Lawyers (Second Respondent)
Goldsmith Lawyers (former Third and Fourth Respondents)

File Number(s):

80006 of 2010

EX TEMPORE Judgment

1The Applicant in his Notice of Motion filed on 25 January 2011 is seeking the following orders:

1.Leave be granted by this Honourable Court to defendant No 1 to file its amended appearance, filed without leave, on 17 th January 2011.

2.Judgment be entered in favour of the plaintiff in relation to reliefs No 1 & 2 in this summons.

3.In the alternative to order 2 above, judgment be entered in favour of the plaintiff in relation to reliefs 1 & 2 against the first defendant in this summons.

4.In the alternative to order No 2, defendant No 1 is to produce in Court within 14 days of this order, copies of all documents, generated by it, both physically and electronically including notes of oral conversations, notes of discussions and telephone conversations as well as documents which have come into its possession from third parties since the 17 th February 2010, in relation to exploration licence No EL 7613 and the area covered by the said EL 7613, and the same as in the preceding, since January 2009, in relation to the area covered by the regional Southeast Lachlan Aerial Geophysical survey conducted by defendant No 1.

5.In the alternative to order No 2, defendants No 3 & 4 are to produce in Court within 14 days of this order, copies of all documents, generated by it, both physically and electronically including notes of oral conversations, notes of discussions and telephone conversations as well as documents which have come into its possession from third parties since the 2 nd March 2010, in relation to exploration licence No EL 7613 and the area covered by the said EL 7613, and the same as in the preceding, since January 2009, in relation to the area covered by the regional Southeast Lachlan Aerial Geophysical survey conducted by defendant No 1.

6.There be a stay of orders of His Honour Justice Sheahan made on 13 th January 2011 in this summons in relation to defendants 3 & 4 as per their notice of motion dated the 6 th of January 2011.

7.An order to the effect - The Honourable Chief Judge calls on the parties, listed below, interested in class 8 matters, for the hearing to the Notice of Motion of His Honour about proportionality of cost in class 8 hearings before this Honourable Court:

(i)The State of New South Wales

(ii)Mr Ross Savas

(iii)Mrs Kaylene Ross

(iv)Highlake Resources Pty Ltd

(v)Anthony Gilbert Martin

(vi)Central West Scientific Pty Ltd

(vii)Coal Mines of Australia Pty Limited

(viii)Caroona Coal Action Group Inc

(ix)Austar Coal Mine Pty Limited

(x)Natalie Cecile Mitchell

(xi)Michael Philip Windebank

8.Cost of this application.

9.Any further orders as this Honourable Court deems fit.

2As already indicated to the parties I am making prayer 1. I am dismissing prayers 2, 3, 4 and 5.

3There is no basis for making the orders sought in prayers 2 and 3 that summary judgment be entered because a submitting appearance by the First Respondent has been filed. Correspondence attached to the affidavit of Mr Martin dated 1 February 2011 relied on in support of his Notice of Motion shows that the First Respondent's solicitors informed him of this. The reasons provided by the First Respondent in that correspondence are correct.

4In relation to prayers 4 and 5, I consider these are premature. The issue of discovery of documents should be revisited after the timetable made by the Registrar on 18 January 2011 has been complied with. Further, as I have already indicated, the appropriate mechanism to obtain documents from non-parties is by a subpoena for production of documents and a timetable allowing for this can be made in due course.

5I turn now to prayer 6 of Mr Martin's Notice of Motion which seeks a stay of the orders of Sheahan J of 13 January 2011 in relation to the former Third and Fourth Respondents' Notice of Motion dated 6 January 2011. The orders made by Sheahan J were, firstly, an order that the proceedings be dismissed as against the former Third and Fourth Respondents under Pt 13 r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 which is to the effect that no reasonable cause of action is disclosed.

6Secondly, an order was made that Mr Martin pay the costs of the Third and Fourth Respondents on a party/party basis from the filing of proceedings until 23 December 2010 and on an indemnity basis on and from 23 December 2010.

7Mr Martin wishes to appeal these orders. Mr Martin relies on his affidavit dated 1 February 2011 which attaches a number of emails exchanged between the parties which I have read. Having read them, they provide no assistance to me in resolving whether the order sought in prayer 6 ought be made. I note that no notice of appeal has yet been filed by Mr Martin and he states his intention from the bar table to do this shortly. He also submits that if no stay is granted in relation in Sheahan J's orders his appeal will be rendered nugatory. A particular concern for Mr Martin is that the former Third and Fourth Respondents are seeking to enforce the costs order made by Sheahan J on 13 January 2011 which includes an indemnity costs order for a certain period.

8I have been directed to an affidavit of Ms Lentz, a paralegal assistant employed by the former Third and Fourth Respondent's lawyers, dated 31 January 2011 which states that the amount of costs sought to be claimed by the former Third and Fourth Respondents is some $9,000. I note a copy of that affidavit is also attached to Mr Martin's affidavit. As already noted, the former Third and Fourth Respondents are no longer parties to these proceedings and they oppose the order for a stay of Sheahan J's orders. The order dismissing them as parties is a final order and that is clear from the High Court authority Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 which parties, including Mr Martin, referred me to. That decision is put forward by the former Third and Fourth Respondents as supporting their argument that there can be no basis for granting a stay of such an order.

9In relation to the relevant principles, I have been referred to the decision of Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 , particularly [18] and [19]. At [18] McColl JA records that the overriding principle in an application for a stay is to ask what are the interests of justice, referring to a decision of Spigelman CJ (Mason P and Handley JA agreeing) in New South Wales Bar Association v Stevens [2003] NSWCA 95; ( 2003) 52 ATR 602 . A lso importantly, detailed principles concerning the grant of a stay are set out in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 , which have been applied in numerous decisions in this Court and elsewhere. I will not read them out but I note that the principles are set out at [19] of Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd . I note that the Court has wide discretion whether to grant a stay and on what terms and that the onus is on an applicant to demonstrate a proper basis for the stay.

10I agree with the former Third and Fourth Respondents' solicitor's submission that there is no proper basis for a stay demonstrated by Mr Martin in relation to the first order made by Sheahan J in which he dismissed the proceedings as against the former Third and Fourth Respondents. Given that it is a final order which dismisses the proceedings I am not aware that there is any stay mechanism available to me and Mr Martin has not been able to convince me otherwise.

11In relation to the costs order made by Sheahan J, I need to weigh up the competing rights of the parties which is that the former Third and Fourth Respondents should have the benefit of the orders made in contrast with Mr Martin arguing that this appeal will be rendered nugatory if no stay is granted. Apart from the fact that the costs order made by Sheahan J is being enforced, as the beneficiaries of the order are entitled to do, there appears to be no other basis presented for why the Court should grant a stay of that order. I do not agree that the appeal in relation to costs will be rendered nugatory if no stay is granted.

12If the Court of Appeal does uphold Mr Martin's appeal on costs these can be returned by the former Third and Fourth Respondents. There was otherwise no basis presented by Mr Martin which suggests that a stay ought be granted and I dismiss prayer 6.

13For the record I note that no action is to be taken by the Court in relation to prayer 7.

14I now need to deal with costs of the Notice of Motion of today. All the Respondents, except for the Second Respondent, are seeking their costs of today because Mr Martin has been unsuccessful. The Second Respondent is content with an order that its costs of today be reserved. I will make that order in relation to the Second Respondent.

15In terms of the costs framework that applies in Class 8 mining matters the costs rules in the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules apply as in other parts of the Court's jurisdiction, notably in Class 4 proceedings. Essentially costs tend to follow the event in the absence of otherwise disentitling conduct. The former Third and Fourth Respondents and the First Respondent argue that their costs ought be paid because they have been successful in opposing Mr Martin's Notice of Motion.

16In relation to the former Third and Fourth Respondents in particular there is reliance placed on correspondence from their solicitor, Mr Goldsmith. This correspondence is attached to the affidavit of Mr Martin dated 1 February 2011. I have been directed in particular to a letter dated 27 January 2011 from Mr Goldsmith to Mr Martin which is described as a Calderbank letter. I record for completeness that I have been referred to pages 8, 9 and 19 of that affidavit which sets out the course of correspondence between Mr Goldsmith and Mr Martin in relation to the reliance on the Calderbank letter at this hearing of the costs of today's Notice of Motion. The argument therefore put by Mr Goldsmith is not only that his clients should be awarded costs because he has been successful in opposing the Notice of Motion but also that I should make an order for indemnity costs relying on Pt 42 r 42.5 of the Uniform Civil Procedure Rules and that is basically applying the principles in Calderbank v Calderbank [1975] 3 All ER 333.

17Prayers 1 and 2 in the Notice of Motion relate to the First Respondent, the State of New South Wales. The First Respondent submits that it was unnecessary to have the matter considered today as there was no legal basis for the Court to make prayer 2 which was seeking that judgment be entered in favour of Mr Martin simply on the basis that the State of New South Wales has filed a submitting appearance. The correspondence attached to Mr Martin's affidavit was referred to which shows that the State of New South Wales' solicitor advised Mr Martin of this. Further he was unsuccessful and therefore should pay costs.

18Mr Martin argued that he did have to put on the Notice of Motion, it was important to seek clarification of these issues, particularly in relation to the submitting appearance. He appeared to submit in reply that there was an important legal point at issue in relation to the operation of the Mining Act 1992 . I do not agree with that submission. The submitting appearance had a particular purpose provided for under the relevant rules of Court and there was simply no legal basis for the making of prayer 2 in reliance on it. Mr Martin suggested the appropriate costs order was that costs be reserved or that costs be in the cause. In view of the fact that the parties have had to attend today on a Notice of Motion on which Mr Martin has been largely unsuccessful I do consider I should award costs in favour of the First Respondent. Mr Martin is liable for the First Respondent's costs of appearing today. In relation to the former Third and Fourth Respondents, I consider they should have their costs paid by Mr Martin, but will not order these on an indemnity basis.

19After the delivery of orders giving effect to this judgment, Mr Martin has made an application that these orders be stayed. I refuse this applications on the basis that no relevant submission in support of granting a stay has been made.

Orders

20The Court makes the following orders in relation to the Applicant's Notice of Motion filed on 25 January 2011:

1.Prayer 1 is made.

2.Prayers 2, 3, 4, 5 and 6 are dismissed.