Martin v State of New South Wales (No 4)

The proceeding concerned an application by the State of New South Wales for leave to appeal from a decision of the primary court that refused to set aside a notice to produce. The notice to produce sought disclosure of the personal financial situation of the plaintiff, Martin, for the purpose of pursuing a stay pending the provision of security for costs. The substantive issues of the underlying dispute were not addressed by the Court below.

The Court of Appeal was required to determine whether leave to appeal should be granted from the refusal to set aside the notice to produce. This involved considering the competency of the appeal and whether the refusal to set aside the notice to produce was an appealable decision.

Basten JA and Handley AJA determined that the appeal was incompetent. Their Honours reasoned that the refusal to set aside a notice to produce was not an appealable order in the absence of specific legislative provision or exceptional circumstances. Consequently, the Court found that it lacked jurisdiction to entertain the appeal.

The Court ordered that the notice of appeal be struck out as incompetent and refused leave to appeal from the refusal to set aside the notice to produce. No order was made as to the costs of the proceeding in the Court of Appeal.