FEDERAL COURT OF AUSTRALIA
Martin v Hillier [2025] FCA 567
ORDERS
SAD 40 of 2024 BETWEEN: VICTORIA MARTIN
Applicant
AND: JAMES HILLIER
First Respondent
NORDBURGER OPERATIONS PTY LTD
Second Respondent
ERIK VARI PTY LTD (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
MARKOVIC J
DATE OF ORDER:
2 JUNE 2025
THE COURT ORDERS THAT:
1.The interlocutory application accepted for filing on 7 March 2025 (Amended Reopening Application) be dismissed.
2.The interlocutory application filed by the applicant on 30 July 2024 be dismissed.
3.The amended interlocutory application filed by the applicant on 25 March 2024 (Amended Leave Application) be dismissed.
4.The applicant is to pay the first respondent’s costs of the Amended Reopening Application and the Amended Leave Application.
Note: Entry of…
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- AGLC
- Martin v Hillier [2025] FCA 567
- Case
- [2025] FCA 567
- Decision Date
CaseChat Overview and Summary
The court found that Ms Martin's applications were made without sufficient justification and were procedurally flawed. The court noted Ms Martin's failure to comply with court-ordered timelines and her lack of explanation for her unavailability at scheduled hearings. The court concluded that the applications were an abuse of process and dismissed them. The court also refused to grant leave to appeal, finding that Ms Martin had not demonstrated any grounds for appeal that would warrant setting aside the primary judge's decision. The court ordered that Ms Martin pay the costs of the proceedings to Mr Hillier.
The court's decision highlights the importance of adhering to procedural requirements and timelines in legal proceedings. The dismissal of Ms Martin's applications and the refusal of leave to appeal underscore the need for applicants to present their cases diligently and in accordance with court directions.
Orders
Orders of the court
1. The interlocutory application accepted for filing on 7 March 2025 (Amended Reopening Application) be dismissed.
2. The interlocutory application filed by the applicant on 30 July 2024 be dismissed.
3. The amended interlocutory application filed by the applicant on 25 March 2024 (Amended Leave Application) be dismissed.
4. The applicant is to pay the first respondent’s costs of the Amended Reopening Application and the Amended Leave Application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The respondents to each of the applications described above are Mr Hillier as first respondent, Nordburger Operations Pty Ltd as second respondent, Erik Vari Pty Ltd as third respondent, and the NW Parties as fourth, fifth and sixth respondents respectively. Mr Hillier took an active role in the hearing of the Amended Leave Application, the Reopening Application and the additional prayers for relief sought in the Amended Reopening Application, Operations and Erik Vari did not appear, and the NW Parties filed a submitting notice in the leave proceeding wishing only to be heard on the question of costs. Despite that, the NW Parties appeared on each occasion that the proceeding was before the Court but made no substantive submissions other than providing a short written submission on one aspect of the Recusal Application.BACKGROUND Before turning to consider each of the applications, it is convenient to set out some relevant background by reference to the primary proceeding and the conduct of the applications before me. The primary proceeding The primary proceeding was commenced on 11 August 2020. Mr Hillier is the applicant in that proceeding, Ms Martin is the first respondent, Operations is the second respondent, Erik Vari is the third respondent and the NW Parties are the fourth, fifth and sixth respondents respectively. Mr Hillier and Ms Martin are brother and sister. The NW Parties acted for Ms Martin and Operations at various times in respect of dealings with Mr Hillier prior to the dispute the subject of the primary proceeding and in connection with that proceeding until their joinder. The primary proceeding concerns a dispute in relation to the ownership of a hamburger business trading as “Nordburger” and, among other things, the terms of a trust pursuant to which shares in and assets of the Nordburger business are held by Operations. In Mr Hillier’s submissions filed in the leave proceeding, he provides a summary of the dispute and the allegations he makes in the primary proceeding. To assist in an understanding of the applications which led to the March Orders and for background purposes only it is convenient to set out some of that summary:(1)Mr Hillier says that he devised and established the Nordburger restaurant chain. He contends that the Nordburger business was to be owned and operated by a joint venture of three parties - him, Ms Martin, and a company owned by Robert Craig, the father of the then Nordburger accountant, Mr Andrew Craig;(2)Mr Hillier transferred to Ms Martin her share in two tranches. When Mr Craig established the structure, he created a company to own the business and the shares in that company were vested solely in Ms Martin as trustee for a discretionary trust of which Mr Hillier and Ms Martin were beneficiaries. Mr Hillier contends that the formal structure did not reflect the true nature of the joint venture structure and for a number of years the parties proceeded compatibly in their dealings on the basis of the existence of a tripartite joint venture;(3)Mr Hillier claims that Ms Martin has effectively expropriated the assets of the business under her sole control in four steps: (a)Mr Martin, and Ms Martin’s solicitor, Mr Williams of Norman Waterhouse, prepared an extensive document, referred to as the William Buck brief, which made serious allegations of fraud and criminality against Mr Craig. It is alleged that the William Buck brief was used to confront Mr Hillier at a meeting attended by Ms Martin, Mr Martin, Mr Williams and another lawyer in April 2016 and to require him to cede effective control of the Nordburger business and assets to Ms Martin if he did not want to be pursued in respect of the same allegations of fraud and criminality advanced against Mr Craig. Mr Hillier executed a deed poll substantially ceding that control and handed over his email password to Ms Martin and Mr Martin, without taking legal advice. Mr Hillier was not to have any contact with Mr Craig or the Craig family joint venture and was effectively shut out of the business (this first stage is referred to as the Plan);(b)in 2019 Mr Hillier was excluded from any share in the financial returns of the business based on a claim, which he denies, that another business he had set up would be a rival and that in setting it up he had appropriated information or intellectual property belonging to Nordburger;(c)a restructure of the trust and business arrangements referred to at (2) above; and(d)frustrating Mr Hillier in the conduct of the primary proceeding by defaults and delays so that, amongst other things, he was denied access to the financial records of the Nordburger business;(4)by order made on 22 August 2023 the NW Parties were joined to the primary proceeding on the basis that they were participants in the Plan; and(5)Mr Hillier contends that Ms Martin, Mr Martin and Mr Williams wrongfully and by unlawful means conspired to create and execute the Plan (referred to as the Conspiracy) and that the NW parties have engaged in further conduct in connection with the primary proceeding in furtherance of the Plan and the Conspiracy.