Martin v State of New South Wales (No 2) [2011] NSWLEC 108

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 1The 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." 2I 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.