Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Martin v State of New South Wales (No 3) [2011] NSWCA 273
• Hearing dates: 29 August 2011
• Decision date: 29 August 2011
• Before: Basten JA at 1; Handley AJA at 7

Decision

(1) Strike out notice of appeal as incompetent.

(2) Refuse application for leave to appeal.

(3) Order the applicant to pay the respondent's 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 to appeal from a decision with respect to costs only - costs dependent upon challenge to substantive judgment - leave to pursue an independent challenge refused
• Legislation Cited: Land and Environment Court Act 1979 (NSW), s 36
• Cases Cited: Martin v Minister for Mineral and Forest Resources [2011] NSWLEC 1011
• Category: Interlocutory applications
• Parties: Anthony Gilbert Martin - Applicant; State of New South Wales - Respondent
• Representation: Counsel: Applicant in person; Ms C Spruce - Respondent; Solicitors: Applicant self-represented; I V Knight, Crown Solicitor - Respondent
• File Number(s): CA 2011/119586

Decision under appeal

• Citation: Martin v NSW Minister for Mineral and Forest Resources [2011] NSWLEC 38
• Date of Decision: 2011-03-18 00:00:00
• Before: Pepper J
• File Number(s): 80002 of 2010

Judgment

1 BASTEN JA : On 12 April 2011, Mr Martin filed a notice of appeal from a judgment and orders given and made by Pepper J in the Land and Environment Court on 18 March 2011: Martin v NSW Minister for Mineral and Forest Resources [2011] NSWLEC 38. The judgment concerned an order for the costs of the class 8 proceedings resolved by Commissioner Dixon in matter [2011] NSWLEC 1011. Mr Martin also has a challenge in relation to Commissioner Dixon's judgment. An appeal may be available, with leave, if leave is granted to appeal from a judgment of Biscoe J on certain separate questions of law referred to his Honour pursuant to s 36(5) of the Land and Environment Court Act 1979 (NSW) ("the LEC Act").

2 The notice of appeal in this matter is incompetent because leave is required to appeal from a decision of the Court with respect to costs only: LEC Act, s 57(4)(f).

3 If the orders in the substantive proceedings are set aside it is likely that the costs orders will also be set aside. If the orders in the substantive proceedings are not set aside, there is no basis demonstrated in the grounds of appeal now proposed to be relied on by way of leave which would warrant the grant of leave. The grounds challenge the validity of the substantive proceedings and indeed the constitutionality of the legislation on which they are based. They do not raise any separate reason as to why the costs order itself was inappropriate.

4 As appears from the judgment of Pepper J, the present applicant gave reasons why an order for costs should not follow the event. The first two reasons related to the delay in the proceedings before the Commissioner, the third related to the late notification by the Minister of his intention to rely on an affidavit. The fourth suggested that evidence taken before the Commissioner was inadmissible. The fifth claimed that the proceedings had been brought in the public interest. Each of these matters was addressed by Pepper J in her reasons. None was found to warrant a departure from the usual rule that costs should follow the event. Her Honour's reasoning was, in each respect, entirely conventional and does not reveal any error of principle of the kind which would warrant a grant of leave.

5 In the course of oral argument it appeared that Mr Martin's primary concern, or at least one concern, was that the order made by Pepper J had apparently been relied upon by the State as entitling it to claim the costs of the proceedings before Biscoe J. The order, as it appears at [67] of her Honour's judgment, relates only to "the costs of the proceedings before Commissioner Dixon and the costs of this motion". If the order was entered in those terms, it seems that it would not apply to the costs of the proceedings before Biscoe J. The Court does not, however, have before it the terms of any entered order.

6 Accordingly, while recognising that the ultimate fate of the costs order may depend upon the result of the application for leave to appeal and any possible appeal in relation to the substantive proceedings before Commission Dixon, leave to pursue an independent challenge in respect of the costs order must be refused. The notice of appeal should be dismissed as incompetent and the application for leave to appeal refused. The applicant must pay the costs of the respondent in this Court.

7 HANDLEY AJA : I agree.

**********

Decision last updated: 06 September 2011