Martin v State of New South Wales (No 5)

[2011] NSWCA 280

Court of Appeal

New South Wales

Case Title:

Martin v State of New South Wales (No 5)

Medium Neutral Citation:

[2011] NSWCA 280

Hearing Date(s):

6 September 2011

Decision Date:

06 September 2011

Jurisdiction:

Before:

Basten JA at 1; 
Handley AJA at 5

Decision:

Refuse application to dismiss the notice of motion brought by Highlake Resources Pty Ltd on the ground of lack of standing.
[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:

PROCEDURE - civil - appeal - standing - application to dismiss strike out of appeal on motion of party lacking standing - whether grantee of licence which had since been assigned to third party retains standing to resist appeal from judgment below

Legislation Cited:

Cases Cited:

Texts Cited:

Category:

Procedural and other rulings

Parties:

In all matters:

Anthony Gilbert Martin - Applicant
State of New South Wales - First Respondent
Highlake Resources Pty Ltd - Second Respondent
Mr Ross Savas - Third Respondent
Mrs Kaylene Savas - Fourth Respondent

In matter 2011/84040:

Central West Scientific Pty Ltd - Fifth Respondent
Tellus Resources Ltd - Sixth Respondent

Representation

- Counsel:

Counsel:

Applicant in person
Submitting appearance - First Respondent
Mr P W Larkin - Second Respondent
Mr B Goldsmith (Solicitor) - Third and Fourth Respondents
Ms K J Williams - Sixth Respondent in 2011/84040

- Solicitors:

Solicitors:

Applicant self-represented
I V Knight, Crown Solicitor - First Respondent
HWL Ebsworth Lawyers - Second Respondent
Goldsmiths Lawyers - Third and Fourth Respondents
Allsop Glover - Sixth Respondent in 2011/84040

File number(s):

CA 2011/35561;  2011/35607;  2011/84040

Decision Under Appeal

- Court / Tribunal:

- Before:

- Date of Decision:

- Citation:

- Court File Number(s)

Publication Restriction:

Judgment

1. BASTEN JA : In relation to the matters in which Highlake Resources Pty Ltd has a significant interest, involving two judgments of the Land and Environment Court in relation to Exploration Licence 7613 (EL 7613), Mr Martin makes an application that Highlake Resources should not be heard in respect of his notices of appeal because it does not have any interest in the EL 7613 and therefore has no standing.

1. The basis for that application is to be found in an affidavit of 1 September 2011 sworn by the solicitor for Highlake Resources which includes documents showing that on 31 January 2011 the Director General registered a transfer of the licence from Highlake Resources to Dorado Resources Pty Ltd.

1. The proceedings concern the issue of EL 7613 to Highlake Resources pursuant to a decision of the Director General or his delegate on 31 August 2010. The proceedings were commenced on 13 December 2010 when Highlake Resources was the holder of the relevant licence. The continuation of the proceedings are a matter in which it has an interest because the decision under challenge was made in its favour. The fact that it may have since assigned its interest does not mean that it does not have standing to challenge the proceedings in this Court.

1. Further, the proceedings seek orders against Highlake Resources which they are entitled to resist. The fact that there may have been another body which obtained an interest in the licence does not mean that similar relief would be available against it. If it is, no doubt further steps can be taken. If the relief is not properly available against Highlake Resources this Court should say so. I would reject Mr Martin's application to dismiss the notice of motion brought by Highlake Resources on the ground of lack of standing.

1. HANDLEY AJA : I agree.

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