Martin v State of New South Wales (No 3)

The Court of Appeal of New South Wales, comprising Basten JA and Handley AJA, considered an appeal by the applicant, Martin, against the State of New South Wales. The dispute concerned the applicant's attempt to appeal a decision relating to costs, which was dependent on a prior challenge to a substantive judgment. The applicant sought to pursue an independent challenge to the substantive judgment, which had been refused.

The primary legal issue before the Court was whether leave to appeal was required from a decision concerning costs only, particularly where that decision was intrinsically linked to a challenge to the substantive judgment. The Court also had to determine whether the applicant could pursue an independent challenge to the substantive judgment after the time for such an appeal had expired.

The Court reasoned that an appeal from a costs order alone generally requires leave, unless the costs order is dependent on a challenge to the substantive judgment. In this instance, the applicant's challenge to the costs order was inextricably linked to an attempt to revive an appeal against the substantive judgment, for which leave had already been refused. The Court found that the applicant had not established grounds for leave to appeal the costs order, nor had they demonstrated any basis for an independent challenge to the substantive judgment outside the usual appeal processes and time limits.

Consequently, the Court ordered that the notice of appeal be struck out as incompetent, refused the application for leave to appeal, and ordered the applicant to pay the respondent's costs in the Court.