Hammercall Pty Ltd v Robertson

In the matter of Hammercall Pty Ltd v Robertson, the applicant, Hammercall Pty Ltd, owned several parcels of land intended for residential development. The second respondent proposed to construct a power line through parts of the applicant's land. Hammercall sought declarations in the Planning and Environment Court that the respondent's proposal was unauthorised. The primary judge directed the parties to resolve the dispute through affidavits, an order Hammercall sought to set aside. The dispute escalated when the applicant filed a separate originating application in the Court of Appeal regarding the land's designation. The second respondent later suspended the designation process, and the applications were heard on 11 August 2011. The Court of Appeal dismissed the application for leave to appeal and the originating application, ordering Hammercall to pay the respondents' costs on 30 August 2011. Hammercall filed a further application on 5 September 2011, seeking reconsideration of the 30 August judgment, correction of errors, leave to appeal, a different court for the costs hearing, and costs. The application was dismissed, and the Court ordered Hammercall to pay the respondents' costs on the indemnity basis.

The primary legal issues addressed by the Court of Appeal were whether it had the power to set aside its orders of 30 August 2011 and, if so, whether it should exercise that power in accordance with the applicant's wishes. The Court also considered whether an order for costs on the indemnity basis should be made given the respondents' claim that the applications were frivolous, vexatious, and an abuse of process. Additionally, the Court examined whether Chesterman JA should recuse himself from hearing the 5 September 2011 application on grounds of apprehended bias, as requested by the applicant.

The Court of Appeal found that it did not have the power to set aside its orders of 30 August 2011, nor should it exercise such power if it existed. The Court concluded that the applications were indeed frivolous, vexatious, and an abuse of process, justifying the order for costs on the indemnity basis. Chesterman JA's application for recusal was also dismissed as there was no apprehended bias. The Court's orders included the dismissal of the 5 September and 14 November 2011 applications, and the requirement that Hammercall pay the respondents' costs of and incidental to those applications, to be assessed on the indemnity basis.