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. At the appointment to settle the appeal index on 27 August 1997 the appellant advised the respondents that there was an intention to supplement the appeal and that if the application was going to be opposed that a formal application would be made. That is the application that is being heard today. 2 UNREPORTED JUDGMENTS The explanation for the delay in filing the supplementary notice of appeal, so far as I can see, is set out in the affidavit sworn by Stephen Woolf on 8 September 1997. It appears that the first senior counsel that was retained to advise in respect of the prospect of the appeal was appointed as the acting Solicitor-General and had to return the brief and that Mr Robertson was only retained to advise on 24 July 1997. In that respect the delay to the appointment on 27 August is not so large. Having regard to the complexity of this matter, Iam not really surprised that the supplementary notice of appeal has not been prepared until fairly recently. The court's attitude has been that all real grounds of appeal should be considered by the court hearing the matter and that as a question of justice the rules should not be applied so as to restrict an appellant from doing this. The second ground for opposing the application is set out in the affidavit of Duncan Roderick Hunter McGregor, sworn 5 September 1997, and in paragraph 26 of that affidavit in particular. This states that there will be a substantial increase in the costs of the appeal if the appellant is granted leave to file the supplementary notice of appeal. In that respect it has been pointed out that the Land and Environment Court has not yet made an order for costs and that the second and third opponents have made a decision that there would be no point in pursing those costs, because it would appear that the appellant is impecunious. This is an inference drawn from the fact that Legal Aid was granted to prosecute the Land and Environment Court proceedings and that an application will also be made for Legal Aid to fund the appeal. If, in fact, the appellant is granted leave to file the supplementary notice of appeal the time that will be taken in hearing the matter will be significantly longer. The original notice of appeal would not have involved more than one day of hearing. The supplementary notice of appeal will require probably at least two days of hearing time. Mr Robertson has suggested that in his opinion if written submissions were filed, which invariably is the case, the hearing could be restricted to two days. To that extent, the total additional cost which the second and third respondents have suggested will be incurred, of about $45,000, might be a slight over-estimate. Nevertheless, if an extra day of hearing is required for the additional grounds of appeal to be properly considered by the court, there will be additional costs that the respondents will have to incur. Of course, the appellant will also have to incur those costs. If in fact the appeal is unsuccessful there is a real risk that the respondents will not be able to recover those costs from the appellant. However I have noevidence as to whether there is any prospect of the appellant being able to pay those costs or not. The third basis for the opposition to the motion is based on a question as to whether the appeal has any real utility. The judgment of Talbot J deals with the question of discretion from page 64. On page 67 he states that: Even if the applicant's claim for relief had been successful in any major respect, on balance, the court would have been reluctant to make any order which had the effect of prohibiting any further mining. Mr Robertson has noted that the next sentence reads: Nevertheless, the court might have taken the opportunity to impose conditions on future operations, at least for a limited period, with the object of establishing protocols which had an effect of reinforcing the protection of the aquifer as a source of water supply and habitat of endangered fauna. WU! -v- DIRECTOR GENERAL OF NATIONAL PARKS AND WILDLIFE (Registrar JuppB It seems to me unlikely that the appellant is going to be successful in having the mining completely banned, although that appears to be the appellant's aim, looking at the orders sought as set out in the supplementary notice of appeal. To that extent, I have real doubts as to whether the Court of Appeal is going to make any orders which are going to be satisfactory to the appellant even if he is successful. Nevertheless, it appears to me that this is a matter of public importance and that, under those circumstances the appellant should be entitled to raise all the grounds he wants the Court of Appeal to consider. For those reasons, I will grant the application to file the supplementary notice of appeal out of time. The supplementary notice of appeal is to be filed and served within five days of today. (Mr Hale asked that the applicant pay the costs of today's motion.) REGISTRAR I think the appropriate thing to do is to reserve the question of costs to the court hearing the appeal. You will have to remind the court at the end of your submissions when the appeal is heard. Those are the orders that I make. Orders accordingly.