Martin v Highlake Resources Pty Ltd [2013] NSWLEC 31

Land and Environment Court New South Wales

Medium Neutral Citation: Martin v Highlake Resources Pty Ltd [2013] NSWLEC 31 Hearing dates: 13 March 2013 Decision date: 13 March 2013 Jurisdiction: Class 8 Before: Pain J Decision: 1. The Applicant Mr Martin is to pay the Second Respondent Highlake Resources Pty Ltd's costs of the proceedings including the costs of this motion as agreed or assessed. 2. The order made on 11 August 2011 is set aside. Note: The Second Respondent consents to order 2. Catchwords: COSTS - exercise of discretion to award costs where proceedings dismissed Legislation Cited: Civil Procedure Act 2005 s 98 Uniform Civil Procedure Rules 2005 r 42.20 Cases Cited: Fordyce v Fordham [2006] NSWCA 274; (2006) 67 NSWLR 497 Re the Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 Martin v State of New South Wales [2011] NSWLEC 20 Martin v State of New South Wales (No 14) [2012] NSWCA 46 Martin v Minister for Resources and Energy [2012] NSLWEC 241 McNamara v Bao Son [2010] NSWSC 809 Category: Costs Parties: Anthony Gilbert Martin (Applicant) Highlake Resources Pty Ltd (Second Respondent) Representation: Mr Martin (Applicant - in person) Mr P Larkin (Second Respondent) HWL Ebsworth Lawyers (Second Respondent) File Number(s): 80006 of 2010

EX TEMPORE Judgment 1Highlake seeks by Notice of Motion dated 10 December 2012 its costs of these proceedings or alternatively costs in relation to two Notices of Motion dated 11 February 2011 and 10 December 2012 (this motion). The Class 8 proceedings challenge the validity of an exploration licence EL 7613 granted on 30 August 2010 for two years, expiring on 31 August 2012. 2Mr Martin did not file a Notice of Motion as he should but I have allowed his oral application seeking his costs of the proceedings. As a litigant in person my understanding is that he can be awarded disbursements only, not having incurred legal costs. 3Mr Martin sought to read par 1-7 of his affidavit sworn 9 November 2012. Most was not read as I held it was irrelevant to this costs application. I otherwise found the affidavit of little assistance in resolving the issues in this motion. 4Highlake relies on two affidavits of Ms Gerathy, solicitor, dated 10 December 2012 and 13 December 2012 setting out the history of this matter. 5The affidavit of 13 December 2012 sets out the earlier history of the proceedings. The proceedings were commenced on 13 December 2010. There were numerous interlocutory applications by Mr Martin related to the joinder of parties, inter alia. The initial pleadings were struck out by me and an order requiring payment of security for costs made in Martin v State of New South Wales [2011] NSWLEC 20 dated 24 February 2011. Three notices of appeal dated 13 January 2011, 1 February 2011 and 24 February 2011 were filed by Mr Martin in relation to various interlocutory orders made in this Court, one in relation to my judgment of 24 February 2011. In some appeals it appears Mr Martin sought to commence original proceedings against fresh parties in the Court of Appeal. It is unnecessary to delve into the detail as it is more than adequately identified in the affidavit. Ultimately the Court of Appeal ordered on 21 March 2012 that my order requiring security for costs to be paid should be overturned in Martin v State of New South Wales (No 14) [2012] NSWCA 46 and the matter be remitted to this court. This meant that Mr Martin had the opportunity to replead his case. Other appeals were dismissed. Two applications for special leave to appeal to the High Court were made by Mr Martin and refused. These various actions are identified and the relevant judgments exhibited to Ms Gerathy's affidavit. 6The affidavit of Ms Gerathy dated 10 December 2012 sets out the history after the matter returned to this Court from the Court of Appeal. By effluxion of time EL 7613 expired on 31 August 2012. Directions hearings were held on 21 May 2012, 6 August 2012, the Applicant having then filed a written case with the High Court, and 9 October 2012. On 22 October 2012 orders were made that: At a directions hearing on 22 October 2012, Mr Martin stated that EL 7613 had expired. The Commissioner mad orders to the following effect: (a) Highlake is to advise Mr Martin and the Court in writing with respect to its position in relation to whether the licence has expired, by 4pm on Friday, 26 October 2012. (b) Mr Martin is to file and serve amended points of claim and any supporting evidence in respect of any remaining issue in the proceedings, including costs, by Monday, 9 November 2012. (c) Liberty to restore the matter to the list. (d) The proceedings are listed for directions on Thursday, 15 November 2012 at 9:00am. 7On Friday 9 November 2012 Mr Martin filed amended points of claim and an affidavit sworn by him. At a directions hearing on 15 November 2012 Mr Martin did not discontinue the proceedings. The transcript of the callover is attached to the affidavit dated 10 December 2012. Highlake filed the Notice of Motion dated 10 December 2012 seeking an order that proceedings be dismissed or struck out and costs. 8This motion was listed before me on 14 December 2012 and I note that it was not necessary to progress the first prayers sought for dismissal/strike out because Mr Martin agreed the proceedings were otiose and could be dismissed. An order to that effect was made. Only costs remain in Highlake's motion.