Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Martin v State of New South Wales (No 11) [2011] NSWCA 288 Hearing dates: 6 September 2011 Decision date: 14 September 2011 Before: Basten JA at 1, Handley AJA at 11 Decision: (1) Strike out the appeal as incompetent. (2) Refuse leave to appeal. (3) Appellant to pay the respondents' costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - review of decisions with respect to mining exploration licences - proper parties - challenge based on misuse of confidential information supplied by applicant - appeal from interlocutory orders Legislation Cited: Land and Environment Court Act 1979 (NSW), s 57 Mining Act 1992 (NSW) Cases Cited: Martin v State of New South Wales [2011] NSWCA 274 Martin v State of New South Wales (No 3) [2011] NSWLEC 88 Category: Principal judgment Parties: Anthony Gilbert Martin - Appellant State of New South Wales - First Respondent Mr Ross Savas - Second Respondent Mrs Kaylene Savas - Third Respondent Mr Tully Araluen Richards - Fourth Respondent Tellus Resources Ltd - Fifth Respondent Representation: Counsel: Applicant in person Mr B Goldsmith (Solicitor) - Second and Third Respondents Ms K J Williams - Fifth Respondent Solicitors: Applicant self-represented I V Knight, Crown Solicitor - First Respondent Goldsmiths Lawyers - Second and Third Respondents Allsop Glover - Fifth Respondent File Number(s): CA 2011/185491 Decision under appeal Citation: Martin v State of New South Wales (No 2) [2011] NSWLEC 108 Date of Decision: 2011-05-19 00:00:00 Before: Pain J File Number(s): 80001/2011 Judgment 1BASTEN JA : In recent years, Mr Martin (and his wife) have held a number of exploration licences in areas of south-east New South Wales under the Mining Act 1992 (NSW). Over a period falling mainly (if not wholly) within 2009 and 2010, delegates of the Minister either refused to renew, or offered to renew on limited terms, both as to area and as to time, various licences, as they expired. Other individuals and companies with interests in mineral exploration have obtained licences in areas close to the areas over which Mr Martin (and his wife) held licences to explore. In one set of proceedings in the Land and Environment Court, commenced in 2010, Mr Martin filed an affidavit (dated 6 January 2011) in which he set out circumstances which led him to believe that confidential information supplied by him in relation to exploration tenements in which he had an interest or involvement as a prospector, had been used by other parties to further their own interests. 2During the same period, an aerial survey was undertaken, apparently by an agency or contractor to the government, which may provide evidence of areas of mineralisation. Although the pleadings are by no means clear, Mr Martin appears to have a concern that the survey was either carried out with the assistance of information supplied by him to third parties in confidence, or that such information had been used to interpret the preliminary results of the survey. 3On 21 January 2011 Mr Martin issued a summons in the class 8 jurisdiction of the Land and Environment Court seeking relief in relation to six expired or proffered exploration licences held or sought in his name. The first return date on the summons was 21 February 2011. On 11 March 2011 Mr Martin filed points of claim in support of the relief sought. Various interlocutory orders were made in the course of these proceedings. One set, involving a purported appeal and application for leave to appeal from a judgment of Craig J of 7 April 2011 has been disposed of in an earlier judgment in this Court: Martin v State of New South Wales [2011] NSWCA 274. 4On 3 May 2011 Preston CJ gave directions as to the issue of subpoenas, the filing of affidavit evidence, lists of documents and written opening submissions. Given the nature of the proceedings, to which reference will be made below, the directions appear unrealistic, at least in respect of a litigant in person. No points of defence were filed. 5The summons and the points of claim (even when amended) were ineptly drawn to raise proper grounds for challenging administrative decisions in relation to the various mining authorities. 6Further interlocutory directions and orders were made on various dates and two judgments were delivered by Pain J on 19 May and 23 May 2011 respectively: Martin v State of New South Wales (No 2) [2011] NSWLEC 108 and Martin v State of New South Wales (No 3) [2011] NSWLEC 88. The matter was listed for hearing on 30 May 2011. However, on that day, Sheahan J made orders vacating the hearing on the ground that the applicant intended to lodge appeals against the judgments and orders of Pain J of 19 and 23 May. His Honour ordered that the applicant pay the respondents' costs thrown away in respect of and as a result of the adjournment. The applicant was ordered "to initiate those appeals" by Friday, 10 June 2011. 7On 6 June 2011 a "notice of appeal" was filed in respect of orders made on 11, 19 and 23 May 2011. The costs order made by Sheahan J on 30 May was also sought to be set aside. 8The judgment of 19 May 2011 refused orders for summary judgment against the State, sought partly upon the basis that the State conceded that it had erred in respect of one authority, and refused a stay of proceedings and a transfer of matters to this Court to be heard with appeals already lodged. These and other procedural steps were refused on grounds which do not reveal appellable error. 9The more substantive issue raised by the applicant and addressed on 19 May was the joinder of Tellus Resources Ltd ("Tellus") as a party to the proceedings. 10The underlying complaint of Mr Martin, as set out in his affidavit of 6 January 2011, is that, in the course of dealing with an offer from a financier to provide substantial capital for exploration of the relevant tenements, the applicant revealed what he described as confidential information to two agents of the proposed financier. It was the disclosure of this information, Mr Martin believes, which led to Tellus obtaining exploration licences, some of which were close to areas over which he had held licences in the past. 11If licences previously held by Mr Martin, but not renewed, had been made available to a third party, any challenge to the refusal or failure to renew the licences might well have required the joinder of the third party in the proceedings. However, that was not this case. The primary judge was satisfied that Tellus did not hold any authorities in respect of land the subject of Mr Martin's licences (whether renewed or not). There was an application to expand the proceedings to challenge four licences held by Tellus, but again those were over adjacent land. 12Her Honour refused leave to expand the proceedings as sought by the applicant, given the imminence of the hearing. No arguable case was raised in respect of any error of principle in relation to that decision. However, in the absence of a legitimate challenge to that decision, the refusal to join Tellus to the existing proceedings was also unchallengeable. So much of the notice of appeal as relates to the judgment of 19 May 2011 should be dismissed as incompetent. Leave to appeal in respect of that judgment should also be refused. The appellant must pay the respondents' costs in this Court. 13HANDLEY AJA : By notice of appeal filed as of right on 6 June 2011 (2011/185491) Mr Martin appealed inter alia from the judgment of Pain J [2011] NSWLEC 108 of 19 May 2011 in Class 8 proceedings. Her Honour dismissed Prayers 2, 3, 4, 6 and 11 of the appellant's notice of motion of 13 May 2011. 14The relief sought in those prayers included summary judgment, in the alternative a stay pending appeals to this Court in other matters, in the alternative the transfer of the proceedings to this Court, the joinder of Tellus Resources Pty Ltd (Tellus) and leave to amend the summons. 15The principal proceedings, commenced by summons dated 21 January 2011, challenged decisions by the Minister relating to the duration of an exploration licence granted pursuant to the appellant's ELA 4085, and the extent and duration of renewals of his mining titles EL 6949, 7069, 7143, 7144 and 7214. The State was the only defendant. Those proceedings were fixed for final hearing before the Chief Judge on 30 May 2011. 16The orders of Pain J were interlocutory and leave to appeal is required pursuant to s 57(4)(d) of the Land and Environment Court Act 1979 . Any appeal was limited by s 57(1) to a question of law. The relief sought in the appellant's notice of appeal included prayer 1 which sought leave to appeal if required. 17On 17 June the State applied by notice of motion for the appeal to be dismissed as incompetent. 18The appeal as of right was clearly incompetent and the notice of appeal will be treated as an application for leave to appeal. 19The orders which Pain J refused involved questions of practice and procedure. They were refused by Pain J on discretionary grounds and the proposed appeal does not raise any question of law, let alone one that is fairly arguable. 20The principal proceedings involve mining titles sought or held by the appellant over areas which were not alleged to be the subject of competing applications or titles. 21In those circumstances there was no justification, on the eve of the trial, for the appellant to attempt to join another party to litigate questions relating to mining titles held or claimed by it over other areas. 22The Court should refuse leave to appeal from the judgment of Pain J of 19 May 2011 and dismiss the appeal from that judgment as incompetent. The appellant must pay the costs of the State and of Tellus of the proceedings in this Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 September 2011