Martin v Hillier

Case [2025] FCA 567


FEDERAL COURT OF AUSTRALIA

Martin v Hillier [2025] FCA 567

File number: SAD 40 of 2024
Judgment of: MARKOVIC J
Date of judgment: 2 June 2025
Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – recusal application – application to reopen application for leave to appeal and recusal application after judgment reserved – applications dismissed – leave to appeal refused  
Legislation: Federal Court of Australia Act 1976 (Cth) ss 27, 37M, 37N
Cases cited:

Briggs on behalf of the Boonwurrung People v State of Victoria [2024] FCA 288

Charisteas v Charisteas (2021) 273 CLR 289

Clifton (Liquidator) v Kerry J Investment Pty Ltd trading as Clenergy [2020] FCAFC 5

Craig & Ors v Hillier & Ors [2018] SADC 114

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Fisk v Chief of the Defence Force [2017] FCA 1489

GPV18 v Minister for Home Affairs [2020] FCA 393

Hawthorn Glen Pty Ltd v Aconex Pty Ltd (No 1) [2007] FCA 2010

Hillier v Martin (No 19) [2024] FCA 210

Kadlunga Proprietors v Electricity Trust of South Australia (1985) 39 SASR 310

Martin v Norton Rose Fulbright Australia (No 2) [2020] FCAFC 42

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Provide Nominees Pty Ltd v Australian Securities and Investments Commission [2024] FCAFC 25

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419

Smith v New South Wales Bar Association (1992) 176 CLR 256

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71

Division: General Division
Registry: South Australia
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs: 202
Date of last submission: 21 May 2025
Date of hearing: 11 July 2024 and 21 May 2025
Counsel for the Applicant: Ms Martin appeared in person
Counsel for the First Respondent: Mr R Whitington KC and Ms H Doyle
Solicitor for the First Respondent: Sykes Bidstrup
Counsel for the 4th-6th Respondents: Mr T P Kentish
Solicitor for the 4th-6th Respondents: Gilchrist Connell

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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Martin v Hillier [2025] FCA 567
Case
[2025] FCA 567
Decision Date

CaseChat Overview and Summary

In Martin v Hillier, the court considered several applications made by Ms Martin, the first respondent, in relation to an ongoing legal dispute concerning the ownership of a hamburger business trading as “Nordburger.” The primary proceeding involves allegations of fraud, conspiracy, and mismanagement by Ms Martin and others against Mr Hillier, the applicant. The applications before the court included an amended application for leave to appeal, a request to reopen an application for leave to appeal and a recusal application, and a subsequent application for leave to appeal following a judgment being reserved. The court had to decide whether to grant leave to appeal, reopen the earlier application, and address the recusal application, which was made after the primary judge had reserved judgment.

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

At 12.45 pm on 30 April 2024, Ms Martin contacted NSW Registry by email to request an adjournment of that case management hearing until she obtained an ex tempore judgment given by the primary judge on 18 October 2023. In her email, Ms Martin explained that she did not want to disturb the listing unless it was necessary in order for her to procure a copy of the ex tempore judgment. As the ex tempore judgment was not the subject of the Amended Leave Application, the case management hearing was not adjourned. At 4.53 pm on 30 April 2024, Ms Martin again contacted NSW Registry, this time to advise that she was unable to attend the first case management hearing because of her caregiving responsibilities for her young children. Relying on her affidavit affirmed on 25 March 2024, Ms Martin indicated that she had limited availability: from 10.30 am to 11.45 am on Wednesdays; and from 10.30 am to 2.00 pm on Tuesdays and Thursdays. She gave no explanation for why she only communicated her availability to the Court the evening before the scheduled case management hearing. The proceeding remained listed for case management hearing on 1 May 2024. Ms Martin did not appear. I made timetabling orders for the conduct of the leave proceeding including orders that Ms Martin file and serve her written submissions by 15 May 2024, listing the Amended Leave Application for hearing on 29 May 2024 and for Mr Hillier to provide a copy of the Orders to Ms Martin at her last known email address. By email sent on 6 May 2024 Ms Martin indicated that the hearing date of 29 May 2024 was not convenient to her. The proceeding was listed for further case management on 15 May 2024 at which time both Ms Martin and counsel for Mr Hillier appeared before me. I made further timetabling orders (15 May 2024 Orders) which took account of Ms Martin’s availability including that: 2. By on or before 27 May 2024, the applicant is to:(a)file and serve written submissions in support of her amended application for leave to appeal filed on 25 March 2024, such submissions to be filed strictly in compliance with r 35.19 of the Federal Court Rules 2011 (Cth) and, in particular, to be no longer than 10 pages in length;(b)file and serve any affidavit in reply to the affidavit filed by the first respondent on 9 April 2024; and(c)provide the first respondent’s solicitors an index of the material which she proposes to include in the application book for the hearing of her amended application.… 4.By 14 June 2024 the applicant is to file any application to be represented at the hearing of her amended application by her husband together with any affidavit in support and her submissions, not exceeding five pages in length.5.If the applicant files an application in accordance with Order 4 above the first respondent is to file and serve any affidavits in response and his submissions, not exceeding five pages in length, by 21 June 2024.6.Any application made by the applicant to be represented at the hearing of her amended application by her husband will be dealt with on the papers.7.By 4 July 2024 the applicant is to file and serve the application book to be prepared in accordance with the index agreed between the parties pursuant to the procedure set out in Orders 2(c) and 3(b) above. The application book is to be prepared in accordance with Format 1 of the Court’s eBooks Practice Note.8the amended application be listed for hearing with an estimate of 2 hours on 11 July 2024 at 10.30 am ACST, such hearing to be held in person in the Court’s Adelaide registry.…

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.