Martin v State of New South Wales

Judgment 1THE COURT: On 24 March 2014, this Court heard an application for leave to appeal from a judgment of Land and Environment Court. In that judgment, the primary Judge (Pain J) ordered the applicant (Mr Martin) to pay the costs of the second respondent (Highlake) of proceedings instituted by Mr Martin: Martin v Highlake Resources Pty Ltd [2013] NSWLEC 31. Mr Martin required leave to appeal because the order made by the primary Judge concerned only costs: Land and Environment Court Act 1979 (NSW), s 57(4)(f). 2Mr Martin's application for leave to appeal and the appeal (if leave was granted) were listed for a concurrent hearing. Mr Martin appeared without legal representation. Mr Messenger appeared for Highlake and informed the Court at the beginning of the hearing that his instructions were neither to support nor oppose the application for leave to appeal. The State of New South Wales was named as the first respondent to the application for leave to appeal, but the orders made by the primary Judge did not affect the State and it made no submissions. 3The applicant filed a summary of argument that did little to identify any error in the reasoning of the primary Judge. Perhaps for this reason, Highlake elected not to file written submissions. However, in the course of oral argument, the Court identified an apparent difficulty with the reasoning of the primary Judge. Her Honour attributed the delay in resolving the proceedings to Mr Martin's conduct, when in fact a significant portion of the delay resulted from the making of an order for security for costs that was later set aside by this Court. 4Mr Messenger was given the opportunity to make submissions on this point. He took advantage of that opportunity and made submissions in support of the order made by the primary Judge. 5At the conclusion of argument, the Court made the following orders: (1)Grant leave to appeal from the judgment of Pain J in the Land and Environment Court delivered on 13 March 2013 in the matter of Martin v Highlake Resources Pty Ltd. (2)Set aside the order made by Pain J that Highlake Resources Pty Ltd receive its costs of the proceedings in that Court. (3)In lieu thereof order that there be no order as to costs of the proceedings in the Land and Environment Court. (4)The respondent, Highlake Resources Pty Ltd, to pay the appellant's costs in this Court as a litigant in person. 6The Court stated that the reasons for making these orders would be given later. These are the Court's reasons. 7Mr Martin commenced proceedings on 13 December 2010 in the Class 8 jurisdiction of the Land and Environment Court. Class 8 of the Court's jurisdiction concerns proceedings arising under the Mining Act 1992 (NSW) or the Petroleum (Onshore) Act 1991 (NSW): Land and Environment Court Act, s 21C(1). Mr Martin challenged an exploration licence that had been granted under the Mining Act on 30 August 2010 and that was to continue for a period of two years (EL 7613). 8On 24 February 2011, the primary Judge struck out Mr Martin's points of claim: Martin v State of New South Wales [2011] NSWLEC 20. Her Honour also made an order that Mr Martin provide security for costs of Highlake in the sum of $49,378.00. A further order provided for the proceedings to be stayed until such time as the security was provided to the satisfaction of the Registrar. 9On 14 September 2011, this Court granted Mr Martin leave to appeal in relation to the order requiring security for costs: Martin v State of New South Wales (No. 10) [2011] NSWCA 287. In the course of the judgment granting leave to appeal, the Court (at [14]-[16]) identified certain apparent defects in the reasoning of the primary Judge justifying the order requiring security for costs. 10No doubt as a consequence of these remarks, Highlake conceded at the hearing of the appeal on 27 September 2011 that the appeal should be allowed. It appears, however, that formal orders allowing the appeal and setting aside the order for security for costs were not made until judgment was delivered by the Court on 21 March 2012: Martin v State of New South Wales (No. 14) [2012] NSWCA 46. The necessity for a reserved judgment arose because on 27 September 2011 the Court had heard another appeal involving the same parties (Martin v State of New South Wales (No. 15) [2012] NSWCA 47). 11Directions hearings in the Land and Environment Court subsequently held on 21 May 2012 and 6 August 2012. It is not clear what transpired during this period. 12A further directions hearing took place before a Commissioner of the Land and Environment Court on 22 October 2012. At this hearing, Mr Martin stated that EL 7613 had expired by effluxion of time. The Commissioner made directions requiring Highlake to inform Mr Martin and the Court within four days as to whether it accepted that EL 7613 had expired. Mr Martin was also directed to file and serve amended points of claim by 9 November 2012. 13On 26 October 2012, Highlake's solicitor's advised that EL 7613 had expired by effluxion of time on 31 August 2012. On 9 November 2012, Mr Martin filed amended points of claim in the proceedings. 14Another directions hearing was held on 15 November 2012. According to the primary Judge (at [18]), Mr Martin had the opportunity at this time to discontinue the proceedings. He did not take advantage of that opportunity. 15On 10 December 2012, Highlake filed a motion that the proceedings be dismissed or struck out. Highlake also sought an order for costs in its favour. 16Highlake's motion was heard by the primary Judge on 13 March 2013. At the hearing, Mr Martin accepted that the proceedings had been rendered otiose by reason of the expiry of EL 7613 and that an order dismissing the proceedings should be made. It followed that only the question of costs remained for determination. 17The primary Judge delivered an ex tempore judgment on costs. Her Honour stated (at [16]) that the expiration of the licence while proceedings were pending was not the result of Highlake's actions. Rather, Mr Martin had pursued numerous appeals that delayed the matter proceeding to a hearing. Her Honour noted (at [17]) that Mr Martin had succeeded in his appeal against the order requiring security for costs. However, her Honour considered that it was unclear why Mr Martin had filed further pleadings on 9 November 2012, after the EL 7613 had expired. In her Honour's view, the filing of amended points of claim required Highlake to respond, since they raised allegations concerning its conduct (at [18]). 18Her Honour concluded as follows: "19 There is no disentitling conduct by Highlake suggesting it should not have a costs order in its favour. 20 I agree with Highlake's submission that the proceedings have been rendered unnecessary as a result of the Applicant's behaviour in the proceedings. I consider I should exercise my discretion and award costs in Highlake's favour pursuant to [Uniform Civil Procedure Rules 2005 (NSW)] r 42.20." 19The order for security for costs was made on 24 February 2011 and, as Mr Messenger accepted, was not set aside until 21 March 2012. The difficulty with the primary Judge's reasoning is that it overlooks that for a period of thirteen months Mr Martin was prevented from taking any steps in the proceedings in the Land and Environment Court by the stay order. This constraint operated quite independently of any other appeals or proceedings instituted by Mr Martin. As the Court of Appeal held, the order for security for costs and the consequential stay order (as sought by Highlake) were wrongly made. It is therefore very difficult to see how Mr Martin could be held responsible for the delay that occurred between 24 February 2011 and 21 March 2012. 20The basis for her Honour's costs order was that Mr Martin was responsible for the delays in the proceedings that led to EL 7613 expiring before the matter could be heard. The judgment does not, however, provide an explanation as to why Mr Martin should have been held responsible for the delay of thirteen months while the stay order was in effect. (A different analysis might have been required had the stay not been set aside.) In the absence of any such explanation, her Honour's exercise of discretion proceeded upon an incorrect factual basis. It follows that the exercise of her Honour's discretion was affected by a material error of fact and therefore miscarried. 21Although the application for leave to appeal concerned only a costs order, it is clearly a matter of significance to Mr Martin. If the costs order were allowed to stand, it would cause injustice to Mr Martin. For these reasons, the Court granted Mr Martin leave to appeal. 22Since the primary Judge's exercise of discretion in relation to costs miscarried, the appeal was allowed and the costs order set aside. 23Mr Martin contended, somewhat faintly, that in lieu of the order made by her Honour, an order should be made that Highlake pay his costs of the proceedings in the Land and Environment Court. Because Mr Martin continued the proceedings for some time after it had become apparent that they would serve no useful purpose, the Court considered it appropriate that there should be no order as to the costs of the proceedings in the Land and Environment Court. Having regard to Highlake's stance in this Court, it was appropriate for it to pay Mr Martin's costs on the basis that he was a litigant in person.