Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Martin v State of New South Wales (No 6) [2011] NSWCA 281 Hearing dates: 6 September 2011 Decision date: 06 September 2011 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 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 Mr 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 2011/35561 Decision under appeal Citation: Martin v State of New South Wales [2011] NSWLEC 126 Date of Decision: 2011-01-13 00:00:00 Before: Sheahan J File Number(s): 80006 of 2010 Judgment 1HANDLEY 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. 2The 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. 3Mr 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. 4The 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. 5Mr 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. 6Mr 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. 7It 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. 8The 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. 9I would therefore propose that the notice of appeal be struck out as incompetent and that leave to appeal be refused. 10The 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. 11Mr Martin has sought to enlarge the proceedings in this Court on the appeal from Sheahan J to include those new claims. 12The Court has no original jurisdiction to grant exemplary damages in an appeal where that question was not litigated below. 13Insofar 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. 14I 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. 15Although 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. 16BASTEN JA : I agree. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 September 2011