Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Martin v State of New South Wales (No 13) [2011] NSWCA 296 Hearing dates: 6 September 2011 Decision date: 19 September 2011 Before: Basten JA at 1; Handley AJA at 8 Decision: (1) Strike out orders 5-7 (seeking final relief) in the notice of appeal dated 12 April 2011. (2) Order the appellant to pay the costs of Tellus Resources Ltd in this proceeding. (3) Leave to appeal granted on 14 September 2011 is restricted to orders 3 and 4 sought in the notice of appeal and order 8 (in relation to costs) so far as it relates to the second respondent (Highlake Resources Pty Ltd), such relief to be sought on the basis of grounds 7 and 8. (4) The appeal, so limited, is listed for hearing on 27 September 2011. [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 motion seeking removal from proceedings - not a party to the proceedings below - not directly affected by the relief sought or maintaining the decision of the Court below - damages sought not within the appellate jurisdiction of the court- Uniform Civil Procedure Rules 2005 (NSW) r 51.4 COSTS - costs sought on an indemnity basis - claim against abuse of process - no evidence demonstrating appellant's attention had been drawn to this factor - costs assessed on ordinary basis PROCEDURE - civil - judgments and orders - leave to appeal previously granted - Court did not deal with all matters of proceeding -attention drawn to the omission by solicitor - no further submissions necessary - restrictions on leave to appeal previously granted Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 51.4 Category: Procedural and other rulings Parties: Anthony Gilbert Martin - Applicant The State of New South Wales - First Respondent Highlake Resources Pty Ltd - Second Respondent Mr Ross Savas - Third Respondent Mrs Kaylene Savas - Fourth Respondent Central West Scientific Pty Ltd - Fifth Respondent Tellus Resources Ltd - Sixth Respondent Representation: Counsel: Applicant in person Submitting appearance - First Respondent Mr P W Larkin - Second Respondent Mr B Goldsmith (Solicitor) - Third and Fourth Respondents Ms K J Williams - Sixth Respondent Solicitors: Applicant self-represented I V Knight, Crown Solicitor - First Respondent HWL Ebsworth Lawyers - Second Respondent Goldsmiths Lawyers - Third and Fourth Respondents Allsop Glover - Sixth Respondent File Number(s): CA 2011/84040 Decision under appeal Citation: Martin v State of New South Wales [2011] NSWLEC 20 Date of Decision: 2011-02-24 00:00:00 Before: Pain J File Number(s): 80006 of 2010 Judgment 1BASTEN JA : In Martin v State of New South Wales (No 10) [2011] NSWCA 287 the Court dealt with a judgment of Pain J of 24 February 2011, in which her Honour struck out points of claim filed by Mr Martin in matter no 80006 of 2010 in the Land and Environment Court. She also required that he provide security for costs before repleading or taking other steps in the proceedings. Mr Martin's challenge to that judgment came before this Court in matter 2011/84040. Leave to appeal was granted on 14 September 2011. 2The judgment of this Court did not deal with other aspects of those proceedings. In particular, it did not address a notice of motion filed by Tellus Resources Ltd seeking that it be dismissed from the proceedings in this Court with costs, to be assessed on an indemnity basis. 3The Court's attention was drawn to its omission to deal with this matter by a letter from the solicitors for Tellus Resources of 15 September 2011. Tellus Resources sought leave to file a short written submission in support of its application. That course was not, however, necessary: on 6 September counsel for Tellus Resources was heard and identified the basis of its application. No further submission was necessary, the omission to deal with the notice of motion being an oversight on the part of the Court. 4In the Land and Environment Court, four respondents were named, being the State of New South Wales, Highlake Resources Pty Ltd and Mr and Mrs Savas. Tellus Resources was not a party to those proceedings in the Court below. On 17 June 2011 it filed a notice of motion seeking to remove itself from the proceedings in this Court. It was entitled to such an order unless it was, in a relevant sense, directly affected by the relief sought or otherwise interested in maintaining the decision of the Court below: Uniform Civil Procedure Rules 2005 (NSW), r 51.4. As no relief has been sought against it in the Court below, it did not readily fit either of those descriptions. However, the notice of appeal sought an order for damages from each of the respondents, including an amount of $2 million to be paid by Tellus Resources to the appellant. That relief was misconceived. It was not within the appellate jurisdiction of this Court to make such an order. Accordingly, paragraph 7 of the notice of appeal should be struck out. Mr Martin must pay the costs of Tellus Resources in respect of its motion of 17 June 2011. 5Counsel for Tellus Resources also sought that costs be assessed on an indemnity basis, the claim against it being an abuse of process. 6The assertion was undoubtedly correct, but there was no evidence before the Court demonstrating that the appellant's attention had been drawn to this factor until Tellus Resources filed submissions seeking an order for indemnity costs. In the circumstances costs should be assessed on the ordinary basis. 7The grant of leave to appeal should be restricted to orders 3 and 4 sought in the notice of appeal and order 8 (with respect to costs) so far as it relates to the second respondent (Highlake Resources Pty Ltd), on grounds 7 and 8. The appeal, so limited, is listed for hearing on 27 September 2011. 8HANDLEY AJA : I agree with Basten JA. ********** Amendments 20 September 2011 - Correcting respondent noted in order Amended paragraphs: Order (3) coversheet and [7] 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: 20 September 2011