Martin v State of New South Wales (No 8) [2011] NSWCA 285

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Martin v State of New South Wales (No 8) [2011] NSWCA 285 Hearing dates: 29 August 2011 Decision date: 14 September 2011 Before: Basten JA at 1; Handley AJA at 9 Decision: Application for leave to appeal refused. [ 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: APPEAL - Land and Environment Court - class 8 jurisdiction - whether appeal from Commissioner to Supreme Court - whether appeal to judge of Land and Environment Court only Legislation Cited: Land and Environment Court Act 1979 (NSW), ss 12, 21C, 30, 33, 34, 36, 42, 56A, 57 Mining Act 1992 (NSW) Cases Cited: Martin v NSW Minister for Mineral and Forest Resources [2010] NSWLEC 131 Category: Principal judgment Parties: Anthony Gilbert Martin - Applicant State of New South Wales - Respondent Representation: Counsel:

Applicant in person Ms C Spruce - Respondent Solicitors:

Applicant self-represented I V Knight, Crown Solicitor - Respondent File Number(s): CA 2011/35586 Decision under appeal Citation: Martin v Minister for Mineral and Forest Resources [2011] NSWLEC 1011 Date of Decision: 2011-01-25 00:00:00 Before: Dixon C File Number(s): 80002 of 2010

Judgment 1BASTEN JA : This matter involves an application for leave to appeal from a judgment of Commissioner Dixon in the Land and Environment Court in exercise of the class 8 jurisdiction of that Court: Martin v Minister for Mineral and Forest Resources [2011] NSWLEC 1011 (25 January 2011). The challenge concerned the refusal of the Minister to grant an application for an exploration licence (ELA 3747) under the Mining Act 1992 (NSW). 2The respondent opposes the grant of leave on the basis that there is no appeal, whether as of right or by leave, from a judgment of a Commissioner in the exercise of class 8 jurisdiction. Class 8 jurisdiction covers proceedings arising under the Mining Act , other than proceedings for an offence: Land and Environment Court Act 1979 (NSW) ("the LEC Act"), s 21C. 3The position of the respondent is that a party dissatisfied with a decision of a Commissioner in class 8 proceedings may appeal to a judge of the Land and Environment Court on a question of law, pursuant to s 56A. An appeal to this Court lies only from a decision of a judge. 4That summary, however, does not cover fully the circumstances in which an appeal may be brought under s 57 of the LEC Act. The section, as in force on 25 January 2011, being the date of the Commissioner's decision, read, so far as relevant, as follows: " 57 Class 1, 2 and 3 proceedings-appeals (1) A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Supreme Court against an order or decision (including an interlocutory order or decision) of the Court on a question of law. ... (3) Despite subsection (1), an appeal does not lie to the Supreme Court against an order or decision of the Court that has been made by a Commissioner or Commissioners, other than a decision of the kind referred to in subsection (4) (a) or (b). (4) Despite subsection (1), an appeal does not lie to the Supreme Court against any of the following orders or decisions of the Court except by leave of the Supreme Court: (a) a decision on a question of law determined by a judge pursuant to a reference under section 36(5), (b) a decision of a Commissioner or Commissioners made after a judge's determination referred to in paragraph (a), where the judge's determination is itself the subject of an appeal to the Supreme Court, (c) an order or decision made on an appeal under section 56A, (d) an interlocutory order or decision, (e) an order made with the consent of the parties, (f) an order or decision as to costs." 5The judgment of Commissioner Dixon stated that several separate questions were identified by the parties to be determined by a judge of the Court and were determined by Biscoe J. Whether or not an appeal lies from the judgment to of Dixon C depends upon the proper construction of s 57(4) and its operation in the circumstances of the case. Thus, the appellate jurisdiction of this Court is only engaged in relation to a decision of a Commissioner if it is, within the terms of par (4)(b) made "after a judge's determination referred to in paragraph (a)", being a question a question of law determined by a judge "pursuant to a reference under section 36(5)". 6The jurisdiction under the Mining Act is class 8 jurisdiction conferred on the Court by s 21C of the LEC Act. It may be exercised by the Commissioner for Mining, appointed under s 12(2AC). The jurisdiction may be exercised by either a Commissioner or a judge of the Court: ss 30(2C) and 33(2A). The question is whether Biscoe J heard the separate questions pursuant to a referral or removal under s 36(5). That provision is only engaged in respect of proceedings before a Commissioner under s 34 or under s 36 itself. However, both ss 34 and 36 apply only to proceedings in class 1, 2 or 3 of the Court's jurisdiction: ss 34(1) and (36(1). Accordingly, s 36(5) was not the source of the referral or removal to Biscoe J. 7A similar power of referral or removal arises under s 42(5) in respect of the class 8 jurisdiction of the Court. However, due perhaps to an oversight, when that provision was introduced, and s 57(1) amended to include class 8 proceedings, no amendment was made to s 57(4)(a) to include reference to s 42(5). Accordingly, the only right of appeal to this Court, pursuant to s 57 of the LEC Act, in relation to decisions in class 8 proceedings, excludes an appeal against an order or decision of the Court made by a Commissioner: s 57(3). It follows that no appeal lies, even with leave of this Court, in respect of the decision of Dixon C. Such an appeal can only come to this Court via an internal appeal pursuant to s 56A of the LEC Act, to a judge of the Court. The application for leave to appeal from the decision of Dixon C must therefore be refused on the basis that this Court lacks statutory appellate jurisdiction in respect of that decision. 8The referred questions were dealt with by Biscoe J on 26 July 2010: Martin v NSW Minister for Mineral and Forest Resources [2010] NSWLEC 131. That judgment is the subject of an application for leave to appeal in proceedings No 2011/135546. 9HANDLEY AJA : I agree

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