Martin v State of New South Wales (No 4)

[2011] NSWCA 274

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Martin v State of New South Wales (No 4) [2011] NSWCA 274

Hearing dates:

29 August 2011

Decision date:

29 August 2011

Before:

Basten JA at 1;
Handley AJA at 9

Decision:

(1) Strike out notice of appeal as incompetent.

(2) Refuse leave to appeal from the refusal to set aside the notice to produce.

(3) No order as to the costs of the proceeding in this Court.

[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:

PROCEDURE - civil - leave sought to appeal from the refusal to set aside notice to produce - request for disclosure of personal financial situation in order to pursue stay pending provision of security for costs - substantive issue not addressed by the Court below - leave refused

Legislation Cited:

Mining Act 1992 (NSW)

Category:

Interlocutory applications

Parties:

Anthony Gilbert Martin - Applicant
State of New South Wales - Respondent

Representation:

Counsel:

Applicant in person
Ms C Spruce - Respondent
Solicitors:

Applicant self-represented
I V Knight, Crown Solicitor - Respondent

File Number(s):

CA 2011/119605

 Decision under appeal 

Citation:

Martin v State of New South Wales [2011] NSWLEC 63

Date of Decision:

2011-04-07 00:00:00

Before:

Craig J

File Number(s):

80001 of 2011

Judgment

1. BASTEN JA : This matter involved an appeal from the judgment of Craig J in the Land and Environment Court delivered on 7 April 2011: Martin v State of New South Wales [2011] NSWLEC 613.

1. The judgment in question involved a summons filed in the class 8 jurisdiction of the Land and Environment Court in relation to applications for six exploration licences under the Mining Act 1992 (NSW). On 18 March 2011 the State of New South Wales sought a stay of proceedings until Mr Martin gave security for its costs of the proceedings. The State also served upon Mr Martin a notice to produce copies of his tax return for the financial year 2009-2010 and bank statements relating to accounts held by him individually or with another person, from 1 July 2010 to the date of the notice, which appears to have been 18 March 2011. Mr Martin's application to set aside the notice to produce was dismissed.

1. As the primary judge made clear in his reasons for dismissing the motion, he was not determining the question of whether an order should be made by way of a stay pending provision of security for costs. Indeed, his Honour was not determining on a final basis whether the Court had power to make such an order, although he noted that there was authority within the Court in favour of the proposition that such power existed: at [8].

1. There may be a real question as to the circumstances in which it would be appropriate to grant a stay in favour of the State of New South Wales if the effect were to preclude an individual from asserting his rights of review of a decision of the State or its Minister, in the exercise of a statutory function.

1. It might have been desirable for that question to have been decided before dealing with the notice to produce. Thus, assuming impecuniosity, would such an order be appropriate? If it would not, it would be unnecessary to require the applicant to disclose his personal financial situation in order to be permitted to maintain his proceedings.

1. It appears that there has been some ambivalence on the part of the State as to whether or not to proceed with the application for a stay pending provision of security for costs and when it did decide to proceed in May 2011 it was in the face of new proposed interlocutory proceedings, at which stage it was prepared to proceed without having a response to its notice to produce.

1. In any event, the judgment and orders below were clearly interlocutory: the notice of appeal was thus incompetent and the outcome of the present proceeding must depend upon the application for leave to appeal.

1. In relation to the leave application, while the substantive issue identified above may need to be resolved at some stage, it is not a matter which invites a grant of leave in circumstances where the Court below has not addressed the question. Accordingly, leave to appeal from the refusal to set aside the notice to produce should be refused. Because of the circumstances set out above, there should be no order as to the costs of the proceeding in this Court.

1. HANDLEY AJA : I agree.

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Decision last updated: 06 September 2011