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Issues on leave application

1. It is neither necessary nor appropriate to rehearse the various issues raised in that judgment. That is because the Attorney's summons has been the subject of a further hearing in the Common Law Division, before Simpson J, on 17-19 February 2015.
2. Prior to that hearing, an attempt was made to resolve certain issues between the parties as to the future conduct of the proceedings. Because these formed the basis of the present application, it is necessary to refer to them in some detail.
3. As was noted in the earlier judgment of this Court, when orders were sought before Hidden J, there were two separate extant proceedings which might be affected by a vexatious proceedings order. First, there was a part-heard case in the Land and Environment Court before Pain J. The parties were not agreed as to the ultimate fate of those proceedings. If the vexatious proceedings order were to be made, as the Attorney sought, those proceedings would be stayed. Mr Martin, on the other hand, sought to have them brought up to the Common Law Division to be heard concurrently with the vexatious proceedings application. Secondly, Mr Martin had separate proceedings in which he sought damages against the State of New South Wales, which he also sought to have heard at the same time as the vexatious proceedings application.
4. On 15 September 2014, Mr Martin commenced fresh proceedings in the Common Law Division, by way of summons ("the summons proceedings"). On 7 October 2014 Mr Martin filed a notice of motion in the summons proceedings which sought eight orders. It was that motion which was before Schmidt J and resulted in her judgment on 19 December 2014, which is the subject of the present application for leave to appeal.
5. The summons proceedings seek substantive orders, broadly as follows: (3) A declaration that a particular mining licence was illegally refused on 4 December 2009; (4) A declaration that the State commenced the application for a vexatious proceedings order to pervert the course of justice and for 'improper purposes'; (5) A declaration that the State fraudulently abused court process in certain proceedings in the Land and Environment Court; (6) A similar claim in respect of certain costs orders of this Court; (7) A declaration that the State acted unconstitutionally in respect of the plaintiff's intellectual property in dealings under the Mining Act 1992 (NSW); (8) A declaration that the Mining Act is unconstitutional; (9) A declaration that the Vexatious Proceedings Act is unconstitutional; (10) A claim for damages in an amount of $500 million, against the State.
6. The first two proposed orders sought that the summons be heard concurrently with the vexatious proceedings application and with proceedings to be transferred from the Land and Environment Court.
7. The applicant's notice of motion repeated the first two orders sought in the summons as proposed orders (1) and (2) on the motion. It also sought leave to amend the summons to include a further head of relief, namely that a particular notification under a petroleum statute was unconstitutional. This order was made by consent and need not be referred to further.
8. Order (3) on the motion sought discovery of documents identified by a notice served on 15 September 2014, the classes being broadly expressed with respect to numerous exploration licence applications and licences, which were, presumably, sought or held by Mr Martin or related parties. The documents presumably were thought to relate to heads of relief claimed in the summons proceedings, but Schmidt J rejected discovery on such a broad and ill-defined basis. There can be no challenge to the rejection of the order sought, nor did it lie at the heart of the present leave application.
9. Order (4) on the motion sought subpoenas against four persons in the Crown Solicitor's Office who had had dealings with Mr Martin, either in respect of the proceedings in the Land and Environment Court or in the vexatious proceedings order application. The other named individuals were various present or past departmental officers and a former Minister who had dealt with applications from Mr Martin under the Mining Act. Schmidt J declined to grant leave to issue subpoenas to those individuals but noted that a similar application had been made in the Vexatious Proceedings Act litigation and that, if appropriate, the application could be renewed in due course.
10. Order (5) in the motion sought to have certain files from the Land and Environment Court produced for the purposes of the Vexatious Proceedings Act litigation. Again, Schmidt J noting that a similar application had been made in that litigation and declined to make that order in the summons proceedings.
11. In dealing with the application to hear the summons proceedings and the Vexatious Proceedings Act litigation concurrently, Schmidt J noted that this Court had referred, in setting aside the orders of Hidden J, to the fact that Mr Martin "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 damages against the State." [3] Schmidt J recognised that the summons proceedings were indeed brought to pursue that damages claim. [4] By both the summons and the motion, she noted that Mr Martin sought to have the summons proceedings and the Vexatious Proceedings Act litigation heard together, together with the proposed transfer of proceedings from the Land and Environment Court.
12. Schmidt J declined to make order (1) in the motion and the summons. The reasoning, as appears at [31]-[33], envisaged that any such order would have required vacation of the dates fixed for the Vexatious Proceedings Act litigation. In any event, the order was not made and the Vexatious Proceedings Act litigation has now proceeded to a hearing, which has been completed, although the Court was advised that judgment was reserved, pending the outcome of the present application.
13. Any challenge to the refusal to order concurrent hearings would need to address the expectation in this Court that the proceedings would be dealt with separately. Thus the Court said: [5] "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."
14. Subject to two specific issues addressed below, there would have been no basis to order concurrent hearings, given the entirely separate purposes of the Attorney's Vexatious Proceedings Act application and Mr Martin's unpleaded and massive claim in damages.
15. The first qualification relates to aspects of the relief sought in the summons which might properly have been addressed in the Vexatious Proceedings Act application. Thus, declaration (4) alleged that the Vexatious Proceedings Act application had been made for improper purposes; declaration (9) alleged the unconstitutionality of the Vexatious Proceedings Act itself. These were matters which it would have been quite inappropriate to determine otherwise than in the Vexatious Proceedings Act application.
16. No doubt an order was not made in those terms because what was sought was concurrent hearings of the summons proceedings and the Vexatious Proceedings Act application, without discrimination between the various forms of relief sought in the summons. Nevertheless, subject to appropriate procedural steps being taken in the Vexatious Proceedings Act application, it would have been surprising if Mr Martin had been precluded from raising those issues at the rehearing before Simpson J. His claim that he was will be addressed below.
17. In short, without attempting to identify each of the relevant passages, the Court was taken to submissions made by Mr Martin before Simpson J in the course of which he raised the assertion that the Vexatious Proceedings Act was unconstitutional on a number of bases. [6]
18. Secondly, it is apparent that Mr Martin addressed Simpson J with respect to the alleged improper purposes behind the application. He did this on the basis of his understanding of observations made by this Court with respect to the operation of s 8(4) of the Vexatious Proceedings Act. [7] Counsel appearing for the Attorney addressed with respect to the constitutional issue, in response to Mr Martin's submissions. [8]
19. Accordingly, it is not apparent that any prejudice was caused to Mr Martin by the failure of Schmidt J to order that two particular forms of relief sought in the summons proceedings should be agitated in the Vexatious Proceedings Act litigation. If any prejudice had been caused, the appropriate form of relief would be in the Vexatious Proceedings Act litigation and not in an appeal from Schmidt J in respect of interlocutory orders in the summons proceedings.
20. The second qualification is of less significance. Given that Mr Martin was appearing in person, the Court was anxious to be satisfied that no confusion remained as to which steps were available in particular proceedings.
21. In fact, as appears from the transcript before Schmidt J, there was careful consideration as to which witnesses were sought to be called in which proceedings. The judge was satisfied that Mr Martin was aware that he might need to call oral evidence from some of the persons who had been listed in the notice of motion in the Vexatious Proceedings Act litigation. [9] In fact, two officers from the Crown Solicitor's Office whose evidence might have been thought to be of primary relevance in that litigation were called before Simpson J. Indeed, Ms De Castro Lopo, an officer in the Department of Justice, swore an affidavit filed for the Attorney General indicating how instructions were obtained with respect to the Vexatious Proceedings Act application and attaching a letter of referral from the Acting Director, Mineral Operations, Trade & Investment, Regional Infrastructure & Services, identifying as matters relevant to a possible application under the Vexatious Proceedings Act, a number of proceedings in the Land and Environment Court and in this Court.
22. Further, on 10 February 2015 another solicitor having conduct of the proceedings against Mr Martin wrote to Mr Martin asking whether he sought to issue subpoenas but advising that he and Ms De Castro Lopo were available to give evidence if required. A further letter detailing case management steps already taken and seeking advice as to whether further steps were to be taken was sent to Mr Martin on 12 February 2015.