Martin v State of New South Wales (No 6)

[2011] NSWCA 281

Court of Appeal

New South Wales

Case Title:

Martin v State of New South Wales (No 6)

Medium Neutral Citation:

[2011] NSWCA 281

Hearing Date(s):

6 September 2011

Decision Date:

06 September 2011

Jurisdiction:

Before:

Basten JA at 16; 
Handley AJA at 1

Decision:

(1) Notice of appeal be struck out as incompetent and leave to appeal refused.
(2) Mr Martin to pay the costs of Highlake Resources Pty Limited and the costs of the State as a submitting respondent.
(3) Mr Martin to pay Mr and Mrs Savas' costs 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:

APPEAL - civil - notice of appeal - leave required from costs orders - appeal struck out as incompetent - parties wrongly joined to judicial review proceedings - Land and Environment Court no authorised to deal with independent claim for breach of confidence - indemnity costs awarded after erroneous joinder challenged - no error of principle

Legislation Cited:

Land and Environment Court Act 1979 (NSW), s 57

Cases Cited:

Texts Cited:

Category:

Principal judgment

Parties:

Anthony Gilbert Martin - Applicant
State of New South Wales - First Respondent
Highlake Resources Pty Ltd - Second Respondent
Mr Ross Savas - Third Respondent
Mrs Kaylene Savas - Fourth 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

- Solicitors:

Solicitors:

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

File number(s):

CA 2011/35561

Decision Under Appeal

- Court / Tribunal:

- Before:

Sheahan J

- Date of Decision:

13 January 2011

- Citation:

Martin v State of New South Wales [2011] NSWLEC 126

- Court File Number(s)

80006 of 2010

Publication Restriction:

Judgment

1. HANDLEY AJA : On 13 January 2011 in class 8 proceedings in the Land and Environment Court, Sheahan J made orders dismissing Mr and Mrs Savas from proceedings to challenge the grant of EL 7613 and ordered Mr Martin to pay their costs on a party/party basis until 23 December 2010 and thereafter on an indemnity basis.

1. The order was interlocutory and under s 57 of the Land and Environment Court Act 1979 (NSW) an appeal only lies from an interlocutory order or an order for costs by leave of this Court.

1. Mr Martin filed a notice of appeal purporting to appeal as a right from the decision of Sheahan J on 12 April 2011, but in prayer 1, foreshadowed an application for leave to appeal. The Court will treat the notice of appeal as an application for leave and dispense with further compliance with the rules.

1. The requirement for leave for interlocutory orders and orders for costs reflects a parliamentary decision that such orders should not be appealable as of right but only on proper grounds.

1. Mr Martin is clearly aggrieved by the order for indemnity costs but his problem is that his allegations of breach of confidence against Mr and Mrs Savas were brought in the wrong court and there was no proper basis for joining them in the judicial review proceedings which challenged the grant of EL 7613.

1. Mr Martin may or may not have a case against Mr and Mrs Savas for breach of confidence, but any such case should be brought in the Equity Division of the Supreme Court and not in the Land and Environment Court.

1. It is an understandable mistake by a litigant in person but Sheahan J was correct in dismissing Mr and Mrs Savas from the proceedings. I see no basis for interfering with that decision and no ground for granting leave to appeal to enable it to be challenged. The result of any appeal would be a foregone conclusion. That is a recognised reason for refusing leave to appeal.

1. The order for indemnity costs was essentially within the discretion of the Judge. It was based upon a letter from the solicitors for Mr and Mrs Savas sent to Mr Martin before 23 December 2010 that informed him that he had sued in the wrong court.

1. I would therefore propose that the notice of appeal be struck out as incompetent and that leave to appeal be refused.

1. The notice of appeal also seeks orders 5 and 6 in respect of EL 6355 granted to Highlake Resources Pty Ltd and exemplary damages against it. Highlake did not take an active part in the hearing before Sheahan J because the notice of motion by Mr and Mr Savas only sought dismissal of the case against them.

1. Mr Martin has sought to enlarge the proceedings in this Court on the appeal from Sheahan J to include those new claims.

1. The Court has no original jurisdiction to grant exemplary damages in an appeal where that question was not litigated below.

1. Insofar as the appeal seeks to raise other questions it is incompetent in seeking to invoke original and not appellate jurisdiction. The notice of appeal should also be struck out against Highlake and the State.

1. I therefore propose that the notice of appeal be struck out as incompetent and that leave to appeal be refused. Mr Martin should pay the costs in this Court of Highlake and the costs in this Court of the State as a submitting respondent.

1. Although Mr and Mrs Savas did not file a notice of motion to have the appeal struck out as incompetent, they appeared and took part in the proceedings and are also entitled to an order for their costs in this Court. Those are the orders I propose.

1. BASTEN JA : I agree.

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