Martin v State of New South Wales (No 13)

[2011] NSWCA 296

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Appeal

New South Wales

Case Title:

Martin v State of New South Wales (No 13)

Medium Neutral Citation:

[2011] NSWCA 296

Hearing Date(s):

6 September 2011

Decision Date:

19 September 2011

Jurisdiction:

Before:

Basten JA at 1; 
Handley AJA at 8

Decision:

(1) Strike out orders 5-7 (seeking final relief) in the notice of appeal dated 12 April 2011.
(2) Order the appellant to pay the costs of Tellus Resources Ltd in this proceeding.
(3) Leave to appeal granted on 14 September 2011 is restricted to orders 3 and 4 sought in the notice of appeal and order 8 (in relation to costs) so far as it relates to the second respondent (Highlake Resources Pty Ltd), such relief to be sought on the basis of grounds 7 and 8.
(4) The appeal, so limited, is listed for hearing on 27 September 2011.
[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 - civil - notice of motion seeking removal from proceedings - not a party to the proceedings below - not directly affected by the relief sought or maintaining the decision of the Court below - damages sought not within the appellate jurisdiction of the court- Uniform Civil Procedure Rules 2005 (NSW) r 51.4

COSTS - costs sought on an indemnity basis - claim against abuse of process - no evidence demonstrating appellant's attention had been drawn to this factor - costs assessed on ordinary basis 

PROCEDURE - civil - judgments and orders - leave to appeal previously granted - Court did not deal with all matters of proceeding -attention drawn to the omission by solicitor - no further submissions necessary - restrictions on leave to appeal previously granted

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 51.4

Cases Cited:

Texts Cited:

Category:

Procedural and other rulings

Parties:

Anthony Gilbert Martin - Applicant
The State of New South Wales - First Respondent
Highlake Resources Pty Ltd - Second Respondent
Mr Ross Savas - Third Respondent
Mrs Kaylene Savas - Fourth Respondent
Central West Scientific Pty Ltd - Fifth Respondent
Tellus Resources Ltd - Sixth Respondent

Representation

- Counsel:

Counsel:

Applicant in person
Submitting appearance - First Respondent
Mr P W Larkin - Second Respondent
Mr B Goldsmith (Solicitor) - Third and Fourth Respondents
Ms K J Williams - Sixth Respondent

- Solicitors:

Solicitors:

Applicant self-represented
I V Knight, Crown Solicitor - First Respondent
HWL Ebsworth Lawyers - Second Respondent
Goldsmiths Lawyers - Third and Fourth Respondents
Allsop Glover - Sixth Respondent

File number(s):

CA 2011/84040

Decision Under Appeal

- Court / Tribunal:

- Before:

Pain J

- Date of Decision:

24 February 2011

- Citation:

Martin v State of New South Wales [2011] NSWLEC 20

- Court File Number(s)

80006 of 2010

Publication Restriction:

JUDGMENT

1. BASTEN JA : In Martin v State of New South Wales (No 10) [2011] NSWCA 287 the Court dealt with a judgment of Pain J of 24 February 2011, in which her Honour struck out points of claim filed by Mr Martin in matter no 80006 of 2010 in the Land and Environment Court. She also required that he provide security for costs before repleading or taking other steps in the proceedings. Mr Martin's challenge to that judgment came before this Court in matter 2011/84040. Leave to appeal was granted on 14 September 2011.

2. The judgment of this Court did not deal with other aspects of those proceedings. In particular, it did not address a notice of motion filed by Tellus Resources Ltd seeking that it be dismissed from the proceedings in this Court with costs, to be assessed on an indemnity basis.

3. The Court's attention was drawn to its omission to deal with this matter by a letter from the solicitors for Tellus Resources of 15 September 2011. Tellus Resources sought leave to file a short written submission in support of its application. That course was not, however, necessary: on 6 September counsel for Tellus Resources was heard and identified the basis of its application. No further submission was necessary, the omission to deal with the notice of motion being an oversight on the part of the Court.

4. In the Land and Environment Court, four respondents were named, being the State of New South Wales, Highlake Resources Pty Ltd and Mr and Mrs Savas. Tellus Resources was not a party to those proceedings in the Court below. On 17 June 2011 it filed a notice of motion seeking to remove itself from the proceedings in this Court. It was entitled to such an order unless it was, in a relevant sense, directly affected by the relief sought or otherwise interested in maintaining the decision of the Court below: Uniform Civil Procedure Rules 2005 (NSW), r 51.4. As no relief has been sought against it in the Court below, it did not readily fit either of those descriptions. However, the notice of appeal sought an order for damages from each of the respondents, including an amount of $2 million to be paid by Tellus Resources to the appellant. That relief was misconceived. It was not within the appellate jurisdiction of this Court to make such an order. Accordingly, paragraph 7 of the notice of appeal should be struck out. Mr Martin must pay the costs of Tellus Resources in respect of its motion of 17 June 2011.

5. Counsel for Tellus Resources also sought that costs be assessed on an indemnity basis, the claim against it being an abuse of process.

6. The assertion was undoubtedly correct, but there was no evidence before the Court demonstrating that the appellant's attention had been drawn to this factor until Tellus Resources filed submissions seeking an order for indemnity costs. In the circumstances costs should be assessed on the ordinary basis.

7. The grant of leave to appeal should be restricted to orders 3 and 4 sought in the notice of appeal and order 8 (with respect to costs) so far as it relates to the second respondent (Highlake Resources Pty Ltd), on grounds 7 and 8. The appeal, so limited, is listed for hearing on 27 September 2011.

8. HANDLEY AJA : I agree with Basten JA.

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Amendments

20 Sep 2011 Correcting respondent noted in order Paragraphs: Order (3) coversheet and [7]