Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Martin v State of New South Wales (No 15) [2012] NSWCA 47 Hearing dates: 27 September 2011 Decision date: 21 March 2012 Before: Basten JA at 20; Handley AJA at 1 Decision: Motion of 26 September 2011 dismissed 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 - power of judge of appeal - whether the Court of Appeal constituted by two judges of appeal pursuant to s 46B(1)(b) may exercise the powers of a single judge PROCEDURE - civil - judgments and orders - application to set aside judgments under Uniform Civil Procedure Rules 2005 (NSW), r 36.15 - whether time limit applies - whether inherent power of the Court to reconsider interlocutory orders is preserved Legislation Cited: Land and Environment Court Act 1979 (NSW), s 57 Supreme Court Act 1970 (NSW), ss 46, 46A, 46B Uniform Civil Procedure Rules 2005 (NSW), Pt 36, rr 36.15, 36.16 Cases Cited: Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20, 147 CLR 245 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; 170 LGERA 162 Perpetual Trustees Australia Ltd v Heperu Pty Ltd & Ors (No 2) [2009] NSWCA 387; 78 NSWLR 190 Teoh v Hunters Hill Council (No 2) (2010) NSWCA 321 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 Central West Scientific Pty Ltd - Fifth Respondent Tellus Resources Ltd - Sixth Respondent Mr Tully Araluen Richards - Seventh Respondent Representation: Counsel: Applicant self-represented H El-Hage - First Respondent P Larkin - Second Respondent B Goldsmith (Sol) - Third and Fourth Respondents K Williams - Fifth 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 - Fifth Respondent File Number(s): 2011/84040 Judgment 1HANDLEY AJA: This Court constituted by Basten JA and myself gave judgment in 13 matters between Mr Martin, the State and other parties between 29 August and 19 September 2011. On 26 September Mr Martin applied to set aside all those judgments by a notice of motion which joined the State, Highlake Resources Pty Ltd, Mr and Mrs Savas, Central West Scientific Pty Ltd, Tellus Resources Ltd and Mr Richards as respondents. 2The notice of motion was supported by a nine page affidavit of Mr Martin sworn the same day, with substantial unpaginated annexures. Appeals by Mr Martin from judgments of Preston CJ and Pain J in the Land and Environment Court were fixed before the Court constituted by Basten and Meagher JJA and myself on the following day. 3The orders sought to be set aside fall into several groups which, with some simplification of the facts, are as follows: (a) The orders in Martin (No 1), Martin (No 5), and Martin (No 13) dealt with procedural questions in matters pending in this Court; (b) The orders in Martin (No 4) and Martin (No 7) dealt with challenges to orders in the court below dealing with procedural questions; (c) The orders in Martin (No 2), Martin (No 8), Martin (No 9), Martin (No 11) and Martin (No 12) struck out incompetent appeals, and refused leave to appeal; (d) The orders in Martin (No 10) granted leave to appeal from an order for security for costs made by the court below, but refused leave on the other questions; (e) The orders in Martin (No 3) and Martin (No 6) struck out incompetent appeals from orders for costs in the court below and refused leave to appeal. 4The notice of motion sought to reopen the judgments under the powers conferred by Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), Pt 36, r 36.15 which provides: "36 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith." 5The rules do not impose any time limit for applications under the UCPR Pt 36, r 36.15, and the motion of 26 September 2011 was formally competent. For obvious reasons the motion could not be heard on 27 September. Following discussion with Mr Martin and counsel and solicitors appearing for the respondents, the Court directed (Tcpt 39) that Mr Martin file and serve on the other parties by 28 October: "such further submissions as he wishes to make in support of his application that this Court review its earlier decisions as identified in his notice of motion of 26 September 2011. The Court will deal with the application on the papers and will determine whether or not to reopen its earlier judgments. If the Court intends to reopen its earlier judgments it will call upon the other parties to respond to Mr Martin's submissions and will provide further directions as to the procedure to be adopted in that regard. Those directions do not involve the grant of leave for any party to file further evidence in relation to the proceedings." 6On 28 October Mr Martin filed lengthy submissions in support of his motion invoking not only Pt 36, r 36.15 but also "the inherent power" of the Court. This is available because the orders were interlocutory. 7The powers under UCPR r 36.15(1) are relatively narrow. In Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) [2009] NSWCA 387; 78 NSWLR 190 the Court said at [16], [17]: "16. The focus of r 36.15(1) is on the judgment or order that is attacked, and the question is whether it was 'given ... entered or ... made' irregularly etc. The focus is on the irregularity in those steps, not on the merits of any decision, or the irregularity of other steps in the proceedings, or in the proceedings below. 17. The rule applies with particular force to default or consent judgments and orders, and those given or made ex parte. It can only have limited application to judgments and orders made or entered after a hearing on the merits at which all parties were represented and fully heard." 8The jurisdiction may well extend to complaints of denial of procedural fairness, based on a reasonable apprehension of bias, even in a superior court: see cases referred to in Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; 170 LGERA 162 at [41]. However, Mr Martin's submissions did not focus on the scope of the power, but ranged widely over the perceived merits of the decisions and the injustices he had suffered. 9Procedural irregularity was, however, addressed by reference to ss 46, 46A and 46B of the Supreme Court Act 1970 (NSW). Section 46 permits a judge of appeal to exercise the powers of the Court, including a power to dismiss an appeal or other proceedings "for want of prosecution or for other cause specified in the rules": s 46(1)(b). A single judge also has power to make an order in any appeal or other proceedings, not being an order or direction "involving the determination or decision of the appeal or other proceedings": s 46(2)(b). This power permits a judge of the Court to dismiss an appeal which is incompetent, that not being an order determining or deciding the appeal: Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [15]. 10Because most of the applications made by Mr Martin purported to be appeals, brought as of right, but, in the alternative, sought leave if that were required, it was appropriate for the Court to be constituted by two judges, in order to deal with the leave applications. 11The Court may be constituted by two judges in respect of certain appeals identified in s 46A of the Supreme Court Act. Other than the appeals dismissed as incompetent, there were two appeals, both of which were listed for hearing before the Court constituted by three judges. Section 46A was not invoked. 12Section 46B provides, relevantly for present purposes: "46 BCertain other matters may be heard by 2 Judges (1) This section applies to the following applications: (a) applications for leave to appeal, (b) applications involving a question of practice and procedure in an appeal or other matter in the Court of Appeal (being applications that are not capable of being dealt with by a single Judge of Appeal). (2) The Chief Justice may direct that such an application be heard and determined by such 2 Judges of Appeal as the President of the Court of Appeal directs." 13The applications for leave to appeal were heard by two members of the Court, constituted under this provision. To the extent that there were incidental matters and issues which could have been dealt with by a single judge, s 46B(1)(b) does not preclude such matters being dealt with by two judges. Rather, the words in parenthesis, "being applications that are not capable of being dealt with by a single Judge of Appeal", are words of expansion, not exclusion. They indicate that two judges have greater powers than a single judge, not that they do not have the powers of a single judge. Whilst the other construction may be available on a literal reading of the words, the result would be absurd and that construction should not be adopted. 14There is no substance in any other basis for finding that the orders were made or entered irregularly, illegally, or against good faith within UCPR r 36.15(1). 15The Court has inherent power to reconsider its interlocutory orders which is preserved by Pt 36, r 36.16(4). As a general rule it will only do so when there has been a change of circumstances or, in cases like these, if the applicant brings forward a new legal argument. 16In Teoh v Hunters Hill Council (No 2) (2010) NSWCA 321 I said, with the concurrence of Allsop P and Beazley JA: "[16] Disappointed applicants cannot hope to succeed in a second application on the same grounds with substantially the same arguments that were unsuccessful the first time. The power is not available for what is no more than a second attempt, on the same arguments, to obtain the orders sought: Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20, 147 CLR 245, 248." 17Section 57 of the Land and Environment Court Act 1979 (NSW) restricts appeals from orders of that Court in Class 8 of its jurisdiction to questions of law. The search for appellable error must be focused on the reasons for judgment of the court below and the arguments presented to that court. In an application such as the present the focus must be on the reasons for judgment in this Court. 18Mr Martin has not identified any ground involving legal error in the reasons for judgment of the Court below, in any of these cases, or in the reasons for judgment of this Court, which could provide an arguable ground for reopening. 19In my judgment the notice of motion of September 26 fails and should be dismissed with costs. 20BASTEN JA: I agree with Handley AJA. ********** 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: 22 March 2012