Martin v State of New South Wales (No 12) [2011] NSWCA 289

Martin v State of New South Wales (No 12) [2011] NSWCA 289

Pain J's orders were interlocutory, so an appeal as of right was incompetent and leave was required under s 57(4)(d) of the Land and Environment Court Act 1979 (NSW). Because any appeal was limited to a question of law and the proposed challenges concerned practice and procedure and raised no fairly arguable question of law, there was no arguable basis to grant leave. The declarations sought concerned substantive issues not determined below and were misconceived.

Jurisdiction
Australia
Judgment Date
14 September 2011
Procedural Posture
Civil Interlocutory Appeal From Land and Environment Court Class 8 Proceedings / Notice of Appeal Filed as of Right; Treated as Application for Leave to Appeal; State Motion to Dismiss Appeal as Incompetent
Outcome
Appeal struck out as incompetent and leave to appeal refused.
Legal Topics
['interlocutory Appeal' 'leave to Appeal' 'question of Law' 'strike Out of Pleadings' 'notice to Produce' 'subpoenas' 'costs']
['civil Procedure' 'appeals' 'land and Environment Court Procedure'] ['interlocutory Appeal' 'leave to Appeal' 'question of Law' 'strike Out of Pleadings' 'notice to Produce' 'subpoenas' 'costs']

Case Brief

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Procedural Posture

Civil Interlocutory Appeal From Land and Environment Court Class 8 Proceedings / Notice of Appeal Filed as of Right; Treated as Application for Leave to Appeal; State Motion to Dismiss Appeal as Incompetent

Legal Issues

  1. 1 ["Whether the appeal as of right from Pain J's interlocutory orders was competent." 'Whether leave to appeal should be granted under s 57 of the Land and Environment Court Act 1979 (NSW).' 'Whether the proposed appeal raised any fairly arguable question of law.' 'Whether the appellant could seek declarations on substantive issues not determined in the Land and Environment Court.']

Ratio Decidendi

Pain J's orders were interlocutory, so an appeal as of right was incompetent and leave was required under s 57(4)(d) of the Land and Environment Court Act 1979 (NSW). Because any appeal was limited to a question of law and the proposed challenges concerned practice and procedure and raised no fairly arguable question of law, there was no arguable basis to grant leave. The declarations sought concerned substantive issues not determined below and were misconceived.

Court Disposition

Appeal struck out as incompetent and leave to appeal refused.

Orders

  • ['Strike out the appeal as incompetent.' 'Refuse leave to appeal.' "Appellant to pay the respondents' costs in this Court."]