Martin v State of New South Wales (No 7)

[2011] NSWCA 282

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Martin v State of New South Wales (No 7) [2011] NSWCA 282

Hearing dates:

6 September 2011

Decision date:

06 September 2011

Before:

Basten JA at 8;
Handley AJA at 1

Decision:

(1) Notice of appeal struck out.

(2) Leave to appeal refused with costs.

[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 to appeal from interlocutory orders and questions of costs - submitting appearance by decision-maker in judicial review proceedings contested by active respondent does not warrant summary judgment

Legislation Cited:

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

Cases Cited:

Oshlack v Richmond Shire Council [1998] HCA 11; 193 CLR 72
The Queen v Australian Broadcasting Tribunal ex parte Hardiman [1980] HCA 13; 144 CLR13

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:

Applicant in person
Submitting appearance - First Respondent
P W Larkin - Second Respondent
Mr B Goldsmith (Solicitor) - Third and Fourth Respondents
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 2011/35607

 Decision under appeal 

Citation:

Martin v State of New South Wales [2011] NSWLEC 129

Date of Decision:

2011-02-01 00:00:00

Before:

Pain J

File Number(s):

80006 of 2010

Judgment

1. HANDLEY AJA : On 1 February 2011, in proceedings in the Land and Environment Court, Justice Pain heard an application by notice of motion by Mr Martin for a number of interlocutory orders. Her Honour refused orders 2 and 3 which were orders for summary judgment in favour of the plaintiff based on the fact that the State had entered a submitting appearance in the proceedings pursuant to leave granted by order 1. Orders 4 and 5 sought orders for the production of documents. Order 6 sought a stay of the costs order made by Mr Justice Sheehan in favour of Mr and Mrs Savas and order 7 sought an order relating to proportionality of costs in class 8 proceedings involving eleven respondents.

1. Her Honour refused a summary judgment on the basis that this could not be supported merely on the submitting appearance entered by the Crown. She refused to order production of documents at that stage, taking the view that the application was premature in view of procedural directions which had been given by the registrar only a short time before. In other words she decided no question of principle but merely a question of the appropriate timing for consideration of the production of documents.

1. She refused to grant a stay of the order for costs made by Mr Justice Sheehan in favour of Mr and Mrs Savas and she deferred ruling on the order 7 sought in relation to proportionality of costs. An order was made for Mr Martin to pay the costs of the proceedings including the costs of the Crown although it had entered a submitting appearance and had appeared by a solicitor in the proceedings.

1. All the orders are relevantly either interlocutory or deal with questions of costs and accordingly leave to appeal is required pursuant to s 57 of the Land and Environment Court Act 1979 (NSW). No arguable question arises in relation to the refusal of summary judgment as her Honour was plainly correct.

1. In relation to the order deferring consideration of the production of documents there was no reason for the court to interfere with that discretionary decision on a matter of practice and procedure since her Honour gave no ruling on any question of principle.

1. In relation to the question of the stay of the order for costs made by Sheehan J, her Honour in the exercise of her discretion declined to interfere for reasons which she gave taking the view that the proposed appeal by Mr Martin against that order was in itself a sufficient ground for the grant of a stay. There is no substantive order in relation to order 7 sought dealing with proportionality of costs.

1. It is apparent therefore that no question of principle arises in the case and no question of law which would call for the intervention of this Court and for consideration of the grant of leave to appeal. I propose therefore that leave to appeal be refused with costs.

1. BASTEN JA : I agree. I would only add in relation to the question of summary judgment that the application appears to have been based on a misapprehension that in submitting to an order of the Court except as to costs, the State was in effect conceding the validity of the orders sought with respect to the substantive issue in the proceedings. That is not so. The State was taking a course which is not only usually appropriate but required in circumstances where proceedings are brought to review the decision of an administrative decision-maker.

1. The inappropriateness of the decision-maker participating in adversary proceedings between contesting parties is well established by cases such as The Queen v Australian Broadcasting Tribunal ex parte Hardiman [1980] HCA 13; 144 CLR13 and Oshlack v Richmond Shire Council [1998] HCA 11; 193 CLR 72.

1. Given the fact that there was no basis for the summary judgment sought, it was quite appropriate for that motion to be dismissed; otherwise the orders were not demonstrated to be subject to any error or law for the reasons given by Justice Handley. Accordingly the orders are that the notice of appeal be struck out and leave to appeal be refused with costs.

1. The Court notes the undertaking by the State not to seek to enforce the costs order in its favour in the Land and Environment Court.

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Decision last updated: 14 September 2011