Martin v State of New South Wales

[2013] NSWCA 302

Court of Appeal

New South Wales

Case Title:

Martin v State of New South Wales

Medium Neutral Citation:

[2013] NSWCA 302

Hearing Date(s):

2 September 2013

Decision Date:

02 September 2013

Before:

Basten JA; Barrett JA

Decision:

1. Stand the matter over to be heard with any application challenging the validity of the order made by Hidden J on 5 March 2013 under the Vexatious Proceedings Act 2008 (NSW).

2. The costs of today will be costs in the proceedings with respect to this matter.

[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 - application for leave to appeal - costs - applicant a vexatious litigant - whether challenge to costs order in Land and Environment Court excluded from the prohibition on bringing proceedings without leave - challenge to be heard together with application for leave to appeal from vexatious litigant order

Legislation Cited:

Vexatious Proceedings Act 2008 (NSW)

Category:

Procedural and other rulings

Parties:

Anthony Gilbert Martin (Applicant)
State of New South Wales (First Respondent)
Highlake Resources Pty Ltd (Second Respondent)

Representation

- Counsel:

Counsel:

Applicant self-represented
Submitting appearance (First Respondent)
Mr T Messenger, Solicitor, appeared for the Second Respondent

- Solicitors:

Solicitors:

Applicant self-represented
Crown Solicitor (First Respondent)
HWL Ebsworth Lawyers (Second Respondent)

File Number(s):

CA 2013/84999

Decision Under Appeal

- Court / Tribunal:

Land and Environment Court

- Before:

Pain J

- Date of Decision: 

13 March 2013

- Citation:

Martin v Highlake Resources Pty Ltd [2013] NSWLEC 31

- Court File Number(s):

LEC 2010/80006

JUDGMENT

1. JUDGMENT of the COURT delivered by BASTEN JA: The Court is of the view that the application for leave to appeal from the judgment of Pain J of 13 March 2013 should be stood over to a date when it can be listed together with the application for leave to appeal filed by Mr Martin, or about to be filed by Mr Martin, with respect to the order made by Hidden J on 5 March 2013 declaring him a vexatious litigant under the Vexatious Proceedings Act2008 (NSW).

2. It was apparently the position of the respondent to this present application, namely Highlake Resources Pty Limited, that the matters raised different issues and that this matter should be dealt with separately and before and apart from any question as to the correctness of the order under the Vexatious Proceedings Act.

3. The difficulty with that approach is that on any view there is an issue as to the construction of the order made under the Vexatious Proceedings Act which stayed proceedings which had already been instituted by Mr Martin in New South Wales "with the exception of the outstanding issue of costs in the Land and Environment Court proceedings 80006/2010". The other order which Hidden J made prohibited Mr Martin from instituting proceedings in New South Wales "without leave of the court".

4. Whether the present application is within the exception with respect to the issue of costs in the Land and Environment Court proceedings or is not, and therefore is within the prohibition, is a matter which needs to be determined in order to know whether Highlake's approach is correct or not.

5. If the effect of the order made by Hidden J is to prohibit the present application being made without leave, then Mr Martin says that he does not intend to seek leave under the Vexatious Proceedings Act but he does wish to proceed with his application for leave to appeal against that order. Accordingly, the only appropriate course in these circumstances is to ensure that both matters are dealt with together and that the matter today be stood over until it can be heard with any application challenging the validity of the order under the Vexatious Proceedings Act.

6. The costs of today will be costs in the proceedings with respect to this matter, namely the application for leave to appeal from the costs order.

7. The Court so orders.

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