Martin v State of New South Wales

Supreme Court of NSW|2014-12-18|Before: Schmidt J, Hidden J

Judgment 1On 5 March 2013, Hidden J made orders under the Vexatious Proceedings Act 2008 (NSW) against the plaintiff, Mr Martin (see Attorney General of New South Wales v Anthony Gilbert Martin [2013] NSWSC 442). Mr Martin appealed that decision, with the result that the matter has been remitted to Hidden J (see Martin v Attorney General for the State of New South Wales [2014] NSWCA 189). The matter is listed for hearing on 17 February 2015. 2By summons filed on 15 September 2014, the plaintiff Mr Martin seeks the following relief: "1. This Summons be heard concurrently with the remittal hearing from the New South Wales Supreme Court of Appeal of Summons No. 2012/217369, seeking Vexatious Proceedings Orders against the Plaintiff. 2. Part heard Summons Commencing an Appeal No. 80925 of 2012, stayed by the said Vexatious Proceedings orders of the 5th of March 2013, be transferred from the New South Wales Land and Environment Court and be heard concurrently with the said Summons No. 2012/217369 and this summons. 3. A declaration that the Respondent and/or its agents acted illegally under the New South Wales Mining 1992 in refusing, on 4th of December 2009, to issue an exploration licence for group 1 minerals to the Plaintiff on area covered by exploration licence application No. ELA 3747, made by the Plaintiff on 27th July 2009, under the New South Wales Mining Act 1992. 4. A declaration that the Respondent and/or its agencies had initiated summons No. 2012/217369 in the New South Wales Supreme on 12th July 2012 and obtained on 5th March 2013, Vexatious Proceedings orders against the Plaintiff in the said summons No. 2012/217369 to pervert the cause and course of justice and/or for improper purposes. 5. A declaration that the Respondent and/or its agencies acted in a fraudulent abuse of court process in obtaining cost orders from Commissioner Susan Dixon on 10th December 2009 in Summons 80004 of 2009 in the New South Wales Land and Environment Court, and then after obtaining Vexatious Proceedings orders against the Plaintiff on 5th of March 2013 from this Honourable Court, in a fraudulent abuse of court process forced the Plaintiff on 12th March 2014 to hand over the sum of $23,779.79 to the Solicitor General of the Australian Capital Territory. 6. A declaration that the Respondent and/or its agencies acted in a fraudulent abuse of court process in relation to the entering and issuance from this Honourable Court's Registry of an ex-parte duplicate cost order against the Plaintiff on 19th September 2011 with a new Cost Assessment case No. 2011/00297218 in addition to the still existing Cost Assessment order for the same amount, in Cost Assessment case No. 2011/00146657. 7. A declaration that the Respondent and/or its agencies acted unconstitutionally (both under the Commonwealth of Australia and New South Wales Constitutions) and/or fraudulently and/or discriminately and/or prejudicially and or unconscionably and/or without due care and/or recklessly and/or utilizing the disproportionality of the Respondent and/or its agencies' market power in relation to the Plaintiff's, at a critical period in the 1:100 mining boom period between 2002 to 2014 in respect of dealings between the Plaintiff and the Respondent under the New South Wales Mining Act 1992 since 2002 regarding the Plaintiffs intellectual properties (over the said intellectual properties the Plaintiff claims exclusive copyright) in relation to the occurrence of minerals and energy resources in New South Wales and Eastern Australia. 8. A declaration that the New South Wales Mining Act 1992 is unconstitutional under the Commonwealth of Australia Constitution as well as the Constitution of New South Wales. 9. A declaration that the New South Wales Vexatious Proceedings Act 2008 is unconstitutional under the Commonwealth of Australia Constitution. 10. The Plaintiff claims exemplary, special and liquidated damages of $500,000,000 (Five hundred million) from the Respondent. 11. The Plaintiff claims the cost of this proceeding. 12. Any further orders as this Honourable Courts deems fit." 3By motion filed on 7 October 2014, Mr Martin seeks the following orders: "1 This Summons be heard concurrently with the remittal hearing from the New South Wales Supreme Court of Appeal of Summons No. 2012/217369, seeking Vexatious Proceedings Orders against the Plaintiff. 2 Part heard Summons Commencing an Appeal No. 80925 of 2012, stayed by the said Vexatious Proceedings orders of the 5th of March 2013 of Hidden J of this Honourable Court, be transferred from the New South Wales Land and Environment Court and be heard concurrently with the said Summons No. 2012/217369 and this Summons. 3 The Respondent is to give discovery documents as per list of documents to be discovered filed in court and served on the Respondent on the 15th of September 2014. 4 Leave is granted to the Plaintiff to file and serve subpoenas to give oral evidence and produce relevant documents in their respective possession to the following persons - i. Ms Jessica Kavanagh ii. Ms Sharon Ohnesorge iii. Mr Aaron Baril iv. Ms Janet Renwick De Castro Lopo v. Mr David Galbraith vi. Dr Richard Sheldrake vii. Mr Brad Mullard viii. Mr William Donald Hughes ix. Mr John Leeks x. Mr Rodney George xi. Mr Steve Hughes xii. Ms Chris Cottier xiii Lindsay Gilligan xiii. Mr Ian Macdonald 5 The Registrar is to arrange for the following New South Wales Land and Environment Court files involving the Plaintiff and the State of New South Wales, its agencies and associated parties, to be brought over for the hearing of this Summons, Summons No. 2012/217369, seeking Vexatious Proceedings Orders against the Plaintiff and part heard Summons Commencing an Appeal No. 80925 of 2012, in the NSWLEC stayed by the said Vexatious Proceedings orders of the 5th of March 2013 of Hidden J of this Honourable Court- i. Summons 80004 of 2009, ii. Summons 80001 of 2010, iii. Summons 80002 of 2010, iv. Summons 80004 of 2010, v. Summons 80006 of 2010, vi. Summons 80001 of 2011, vii. Summons 80021 of 2012, viii. Summons 80925 of 2012. 6 Leave is granted to the Plaintiff to amend his summons to include the following relief: The Notification under section 9(1)(A) of the New South Wales Petroleum (Onshore) ACT 1991, appearing on page 3262 of NSW Gazette No. 79 dated the 26th of September 2014, is unconstitutional under the Commonwealth of Australia Constitution and the Constitution of New South Wales (1904). 7 Cost of this Notice of Motion to the Plaintiff. 8 Any further orders as this Honourable Court deems fit." 4The orders sought were opposed by the State, other than order 6. I accordingly granted Mr Martin that leave at the hearing of the motion. 5The State's position was that the motion should be stood over pending resolution of the proceedings before Hidden J. In the alternative, it submitted that paragraphs 1-5 and 7 of the motion should be dismissed, or partially stood over.

The Vexatious Proceedings Act litigation 6The orders made by Hidden J in the Vexatious Proceedings Act litigation were: "1 That, pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008, all of the proceedings in New South Wales already instituted by the defendant are stayed with the exception of the outstanding issue of costs in the Land Environment Court proceedings 80006/2010. 2 That, pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008, the defendant be prohibited from instituting proceedings in New South Wales without the leave of this court. 3 The defendant is to pay the plaintiff's costs of the proceedings." 7Those orders were set aside by the Court of Appeal, on the basis of consent orders proposed by the parties, who agreed that Hidden J had erred. It was also observed at [25] - [26]: "25 In the remitted proceedings it will be necessary to make findings as to whether each of the proceedings relied on by the Attorney General satisfies the definition of "vexatious proceedings" in s 6 of the VP Act. If only some of the proceedings satisfy the definition, it will then be necessary to decide whether the appellant "has frequently instituted or conducted vexatious proceedings in Australia" (s 8(1)(a)). If the answer is yes, the final question to be answered under the VP Act is whether the Court should exercise the discretion conferred by s 8(1) to make vexatious proceedings orders against the appellant. These are issues that should be resolved by the Supreme Court on remitter. 26 There is no basis for the appellant's damages claim to be remitted or to be subject to an order for mediation. The only matter presently before this Court is the appeal from the vexatious proceedings orders. The damages claim will have to be addressed, if at all, in separate proceedings." 8The reference to Mr Martin's damages claim was a reference to what was discussed at [13]: "The appellant submitted that his claim for damages against the State, which he has pursued in various proceedings, should be referred to mediation, with the mediator to submit a recommendation to the Court. If this option was not acceptable, the appellant appeared to accept that the matter should be remitted to enable the Supreme Court to resolve the outstanding issues concerning the Attorney General's application for vexatious proceedings orders. However, the appellant sought further orders relating to the matters to be canvassed on remittal including, in particular, what was said to be his claim for $500 million in damages against the State." 9Mr Martin has now brought these separate proceedings to pursue that damages claim. He seeks, however, to have these proceedings dealt with at the same time as the remitted hearing of the application under the Vexatious Proceedings Act. 10In the remitted hearing, it may also be necessary to consider the issue raised at [18] of the Court of Appeal's judgment: "It appears that no court in New South Wales has yet considered whether it is both appropriate and consistent with the rationale underlying the VP Act for the Attorney General to apply for a vexatious proceedings order against a person engaged in litigation against the State or an agency of the State. In this connection, it may be relevant that s 8(4)(d) empowers "a person against or in relation to whom another person has instituted or conducted vexatious proceedings" to apply for an order. It may be that the Attorney General is to be regarded as in the same position as any other litigant who is the subject of vexatious proceedings and who is entitled to seek a vexatious proceedings order." 11This is a reference to part heard proceedings before the Land and Environment Court, where Pain J is hearing an appeal from a decision of Commissioner Dixon given in 2011. By this motion Mr Martin seeks to have that appeal transferred to this Court to be heard together with these proceedings and the Vexatious Proceedings Act litigation

It is not appropriate to stand the hearing of the motion over 12Given the orders sought in the motion, it is plainly not appropriate simply to stand the hearing of the motion over until after the remittal hearing of the Vexatious Proceedings Act litigation, as the State proposed. Given what is sought in order 1, namely that the summons be "heard concurrently" with the remittal hearing, the effect of such an adjournment would be to refuse that order and the order seeking the transfer of the Land and Environment Court proceedings to this Court, to be heard with the Vexatious Proceedings Act litigation.

A concurrent hearing must be refused 13Given what is in issue in the Vexatious Proceedings Act litigation, due to be heard on remittal in February 2015 and what is sought in the summons commencing these proceedings, I am satisfied that justice requires that the order that the summons filed in these proceedings be heard concurrently with the remittal hearing of the Vexatious Proceedings Act litigation and the part heard proceedings before Pain J in the Land and Environment Court must be refused. 14There was no issue that the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) permit such orders to be made, but the State opposed the orders sought. Its position must be accepted in the circumstances here before the Court. 15It is quite apparent that the issues raised in the three sets of proceedings are very different. 16The Vexatious Proceedings Act litigation is concerned with whether Mr Martin has frequently instituted or conducted vexatious proceedings in Australia (s 8.) "Vexatious proceedings" is defined in s 6 to include proceedings that are an abuse of process; instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose; instituted or pursued without reasonable ground; or conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. 17In issue in these proceedings are claims that the Vexatious Proceedings Act litigation was instituted to pervert the course of justice. That is a matter which Mr Martin has, it appears, already raised in those proceedings and before the Court of Appeal. Mr Martin also here claims that the State and its agents acted illegally in 2009, when refusing to issue Mr Martin an exploration licence and that the State and its agencies acted, amongst other things, unconstitutionally and fraudulently, in relation to his intellectual property in the period between 2002 and 2014. Claims that the Mining Act 1992 (NSW) and the Vexatious Proceedings Act are unconstitutional are also advanced and exemplary, special and liquidated damages in the sum of $500,000 are claimed. 18The appeal proceedings before Pain J concern Commissioner Dixon's decision in relation to Mr Martin's 2009 application for an exploration license, refused by the Minister for Mineral and Forest Resources. Those proceedings are part heard. They were stayed as the result of the orders made by Hidden J. Those orders have been set aside by the Court of Appeal and there is nothing at present which precludes those proceedings being finalised. It is not, in those circumstances, appropriate to order the transfer of those proceedings to this Court. That would unquestionably involve the parties in unnecessary additional cost. 19To attempt to hear all of these complex, disparate issues together in the one set of proceedings would be inconsistent with what justice requires. Contrary to Mr Martin's submissions, it is inconceivable that all of those matters could be heard together with the Vexatious Proceedings Act litigation listed for hearing for no more than 3 days in February. Nor would it accord with the requirements of the Civil Procedure Act, which, it may not be overlooked, requires the Court to have regard to the overriding purpose specified in s 56, the just, quick and cheap resolution of the real issues in the proceedings. 20Questions of proportionality of cost and elimination of delay must also be borne in mind (see s 59 and s 60). The orders sought would not achieve either of those objectives. In the result, this aspect of the motion cannot succeed.

Discovery 21The discovery sought may also not be permitted. 22Discovery must be relevant to a fact in issue (Rule 21.2(4)). General discovery may not be required. What is here sought is oppressive and would clearly give rise to disproportionate costs, contrary to the requirements of the Civil Procedure Act. 23What Mr Martin seeks is discovery of all documents generated by the State and its agents since January 2007, relating to a large number of prospecting licence applications, exploration licence applications and exploration licenses, generated at Ministerial level, between the Minister and senior Departmental officers and corporations, at senior officer level, between senior and operational officers and at operational officer level. 24That all of these myriads of documents could conceivably be relevant to any fact in issue in these proceedings has not been established. The cost, time, trouble and expense necessarily involved in such production is entirely unwarranted.

Subpoenas 25It is premature to entertain the application for leave to issue subpoenas to give oral evidence and produce documents sought to be served on solicitors and former solicitors of the Crown solicitor's office, various Departmental officers, a former Director General and a former Minister. A similar application appears to have been made in the Vexatious Proceedings Act litigation. 26If such an application were to be entertained in these proceedings, the documents sought to be subpoenaed would have to be identified with reasonable particularity (see Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573.) 27Further, it is only relevant evidence, that is evidence that, "if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding" which may be accepted (s 55 of the Evidence Act 1995 (NSW)). That the various persons sought to be subpoenaed would have such evidence to give, if called, is not apparent. What might be in issue in these proceedings has not yet been identified. 28In the result, this application must be refused at present, but Mr Martin given leave to renew the application, on reasonable notice being given and proper particulars of the documents sought to be produced, being provided.

Transfer of files 29It is also premature to entertain this application, which seeks that various Land and Environment Court files be brought to this Court. 30A similar application appears to have been made in the Vexatious Proceedings Act litigation. In the first instance it is appropriate for that application to be dealt with in those proceedings, given that it is listed for hearing in February.

The hearing of the Vexatious Proceedings Act litigation 31Those proceedings were listed for hearing in February 2015, over Mr Martin's objection. Mr Martin understood that those proceedings would be listed with these proceedings, so that he could make an application for adjournment of the February hearing. 32The Vexatious Proceedings Act matter was not so listed, no doubt because the motion which Mr Martin filed was a motion dealing with applications which he was pressing in relation to these proceedings. It did not deal with the Vexatious Proceedings Act litigation. Mr Martin has not filed any motion seeking an adjournment of the hearing of that matter. 33Should he wish to press such an application, he should do so in the ordinary way, by way of motion supported by an affidavit.

Orders 34Mr Martin's motion is dismissed other than the leave given in relation to order 6 and what is sought in orders 4 and 5, which is stood over. Mr Martin has leave to renew those applications on reasonable notice being given. 35The usual order as to costs is that they follow the event. In this case that would be an order that Mr Martin bear the State's costs of the motion as agreed or assessed. Unless the parties approach by 20 January 2015, that will be the Court's order.

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: 19 December 2014

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