Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Martin v State of New South Wales (No 12) [2011] NSWCA 289 Hearing dates: 6 September 2011 Decision date: 14 September 2011 Before: Basten JA at 1; Handley AJA at 6 Decision: (1) Strike out the appeal as incompetent. (2) Refuse leave to appeal. (3) Appellant to pay the respondents' 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 - interlocutory - leave required - appeal limited to decisions on question of law - leave refused Legislation Cited: Land and Environment Court Act 1979 (NSW), s 57 Cases Cited: Martin v State of New South Wales (No 11) [2011] NSWCA 288 Category: Principal judgment Parties: Anthony Gilbert Martin - Appellant State of New South Wales - First Respondent Mr Ross Savas - Second Respondent Mrs Kaylene Savas - Third Respondent Mr Tully Araluen Richards - Fourth Respondent Tellus Resources Ltd - Fifth Respondent Representation: Counsel: Applicant in person Mr B Goldsmith (Solicitor) - Second and Third Respondents Ms K J Williams - Fifth Respondent Solicitors: Applicant self-represented I V Knight, Crown Solicitor - First Respondent Goldsmiths Lawyers - Second and Third Respondents Allsop Glover - Fifth Respondent File Number(s): CA 2011/185491 Decision under appeal Citation: Martin v State of New South Wales (No 3) [2011] NSWLEC 88 Date of Decision: 2011-05-23 00:00:00 Before: Pain J File Number(s): 80001/2011 Judgment 1BASTEN JA : The judgment of Pain J in the Land and Environment Court of 23 May 2011 dealt with procedural and interlocutory rulings in matter no 80001 of 2011: Martin v State of New South Wales (No 3) [2011] NSWLEC 88. 2Other rulings, and in particular the rejection of the application to join Tellus Resources Ltd ("Tellus") as a party to the proceedings, have been dealt with in a separate judgment of this Court: Martin v State of New South Wales (No 11) [2011] NSWCA 288. The present matter involves orders striking out parts of the pleadings dealing with a geophysical survey, setting aside a notice to produce issued by the applicant and making an order that the applicant pay Tellus' costs of resisting the motion to join it in the proceedings. 3The notice of appeal must be struck out as incompetent. The matter should be dealt with on the basis that order 1 sought in the notice, seeking leave to appeal "if required", should be treated as an application for leave to appeal. 4Various orders sought to be challenged are no more than directions as to the conduct of the matter, made at a time when the hearing was fixed for 30 May 2011. None of them raise any issue of principle and, in any event, they are of historical significance only. The matters which may have on-going consequences for the trial of the proceedings are the orders of Pain J of 19 and 23 May which have been expressly referred, either in this judgment or in the judgment in Martin (No 11) . No arguable basis for granting leave to appeal has been raised. In addition, the notice of appeal sought numerous declarations, going to the substantive issues raised in the Court below. These matters not having been determined in the Land and Environment Court, no appeal lies in respect of any orders made in that Court and the application for declarations are misconceived. 5I agree with the further reasons of Handley AJA and the orders he proposes. 6HANDLEY AJA : By notice of appeal filed as of right on 6 June 2011 (2011/185491) Mr Martin appealed as of right from the judgment of Pain J [2011] NSWLEC 88 of 23 May 2011 in Class 8 proceedings. 7Her Honour had before her prayer 5 in the appellant's notice of motion of 13 May 2011, and notices of motion of the State of 3 and 11 May. On the State's notice of motion of 3 May she struck out some paragraphs in the appellant's summons, and some paragraphs in his amended points of claim of 27 April 2011. On the State's notice of motion of 11 May she set aside the appellant's notice to produce of 5 May. On the appellant's notice of motion of 13 May she gave leave to issue some subpoenas but refused others. She also made an order for costs in favour of Tellus Resources Ltd. 8The principal proceedings had earlier been fixed for hearing before the Chief Judge of the Court on 30 May 2011. 9The orders of Pain J were interlocutory and leave to appeal is required pursuant to section 57(4)(d) of the Land and Environment Court Act 1979 . Any appeal was limited by s 57(1) to a question of law. The relief sought in the appellant's notice of appeal included prayer 1 which sought leave to appeal if required. 10On 17 June the State applied by notice of motion for the appeal to be dismissed as incompetent. 11The appeal as of right was clearly incompetent and the notice of appeal will be treated as an application for leave to appeal. 12The orders which Pain J refused involved questions of practice and procedure. The proposed appeal does not raise any question of law that is fairly arguable. 13The subpoenas which the Judge refused to allow related to prayers 8, 9 and 10 of the appellant's summons which sought declarations that an airborne geophysical survey conducted by the State and Geoscience Australia contravened certain State legislation, that the survey was based on confidential information supplied by the appellant to the State and Geoscience Australia, and that it had confirmed the mining potential of the area. 14The Judge struck out those prayers and related paragraphs 6, 7, 39, 40, 83, 84, 128 and 129 of the amended points of claim. She held that those prayers and the related paragraphs were not relevant to the judicial review of the official decisions challenged in the summons and were not within the jurisdiction of the Land and Environment Court. 15This decision removed any possible basis for para 2 of the appellant's notice to produce and all but two of the subpoenas he had sought. The Judge accepted evidence that there was no material within para 1 of the appellant's notice, and she found that para 3 was oppressive. 16Her Honour ordered the appellant to pay the costs of Tellus Resources Ltd of the proceedings on 19 May when it successfully opposed his application to join it as a defendant in the principal proceedings. 17The appellant's challenges to these orders do not raise any arguable question of law which would justify the grant of leave to appeal. 18The Court should refuse leave to appeal from the judgment of Pain J of 23 May 2011 and dismiss the appeal from that judgment as incompetent. The appellant must pay the respondents' costs of the proceedings in this Court. ********** 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