WIN -v- DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE [1997] NSWCA 349

WIN -v- DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

REGISTRAR Jupp 8 September 1997

[1997] NSWCA 349

Registrar Jupp. By notice of motion filed on 28 August 1997 the claimant/appellant, Paul Winn, has sought an extension of time to file a supplementary notice of appeal. The application has been opposed by the second and third respondents (the 'sand miner') and by the fourth and fifth respondents (The Director-General and Minister for Mineral Resources).

The judgment sought to be appealed from was handed down by Talbot J on 20 December 1996. A notice of appeal without appointment was promptly filed on 16 January 1997 and a notice of appeal with appointment was filed on 15 April 1997. It has been pointed out by the opponents to the motion that the notice of appeal with appointment was filed on almost the last day for so filing.

The original notice of appeal with appointment raised only twelve grounds of appeal, confined to construction of development consents and the validity of one of the conditions of those developments. The supplementary notice of appeal which the appellant seeks to file raises an additional forty-one grounds of appeal which will require the court to review a substantial part of the evidence that Talbot J considered. The hearing in the Land and Environment Court took eighteen days, so it is certain that there will be quite a deal of material that the court will have to consider.

The opponents have opposed the application on 3 principal bases.

The first is that there was no adequate explanation for the failure to amend the notice of appeal within the period which would normally be applicable pursuant to the rules. Normally an appellant is entitled to amend or supplement the appeal prior to the appointment to settle the appeal date (Part 51AA rule 12). In this case, the appointment to settle the appeal index occurred on 29 May 1997. So pursuant to the rules the appellant would have been entitled to amend the appeal without the consent of the respondents if it had been filed before 29 May. The appeal index was not settled on 29 May 1997 and the settling of the appeal index was adjourned to two further appointments on 3 July and 27 August 1997. It is a matter of some debate as to whether the provisions of rule 12 relate only to the first appointment to settle the appeal index or to any adjourned appointments to settle the appeal index, to the effect that the appellant can supplement the appeal any time prior to the appeal index being settled. To the extent that the appeal index was only settled on a provisional basis on 27 August 1997, it is arguable that the appellant may have been able to supplement the appeal at any time up to that date.