Martin v State of New South Wales (No 13) [2011] NSWCA 296

Martin v State of New South Wales (No 13) [2011] NSWCA 296

Tellus Resources Ltd was not a party to the Land and Environment Court proceedings, no relief had been sought against it below, and it was not directly affected by the appeal or interested in maintaining the decision below within r 51.4. The damages claim against it in the notice of appeal was misconceived and outside the Court's appellate jurisdiction, so the relevant final relief had to be struck out and Tellus Resources Ltd awarded its costs on the ordinary basis, not indemnity basis, because there was no evidence the appellant had earlier been alerted to the abuse of process point.

Jurisdiction
Australia
Judgment Date
19 September 2011
Procedural Posture
Civil Appeal / Notice of Motion by Tellus Resources Ltd Seeking Removal From Appeal Proceedings After Leave to Appeal Had Been Granted
Outcome
Notice of appeal struck out in part; Tellus Resources Ltd awarded costs on the ordinary basis; leave to appeal restricted; limited appeal listed for hearing.
Legal Topics
['removal From Appeal Proceedings' 'parties to Appeal' 'appellate Jurisdiction' 'strike Out of Relief Sought in Notice of Appeal' 'indemnity Costs' 'security for Costs']
['civil Procedure' 'appeals' 'costs'] ['removal From Appeal Proceedings' 'parties to Appeal' 'appellate Jurisdiction' 'strike Out of Relief Sought in Notice of Appeal' 'indemnity Costs' 'security for Costs']

Case Brief

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Procedural Posture

Civil Appeal / Notice of Motion by Tellus Resources Ltd Seeking Removal From Appeal Proceedings After Leave to Appeal Had Been Granted

Legal Issues

  1. 1 ['Whether Tellus Resources Ltd, which was not a party to the proceedings below, should be removed from the appeal proceedings.' 'Whether the notice of appeal could seek damages against Tellus Resources Ltd, including $2 million.' 'Whether Tellus Resources Ltd should receive costs on an indemnity basis.' 'Whether leave to appeal should be restricted to specified orders and grounds.']

Ratio Decidendi

Tellus Resources Ltd was not a party to the Land and Environment Court proceedings, no relief had been sought against it below, and it was not directly affected by the appeal or interested in maintaining the decision below within r 51.4. The damages claim against it in the notice of appeal was misconceived and outside the Court's appellate jurisdiction, so the relevant final relief had to be struck out and Tellus Resources Ltd awarded its costs on the ordinary basis, not indemnity basis, because there was no evidence the appellant had earlier been alerted to the abuse of process point.

Court Disposition

Notice of appeal struck out in part; Tellus Resources Ltd awarded costs on the ordinary basis; leave to appeal restricted; limited appeal listed for hearing.

Orders

  • ['Strike out orders 5-7 (seeking final relief) in the notice of appeal dated 12 April 2011.' 'Order the appellant to pay the costs of Tellus Resources Ltd in this proceeding.' 'Leave to appeal granted on 14 September 2011 is restricted to orders 3 and 4 sought in the notice of appeal and order 8 (in relation to...