Federal Court of Australia

Hillier v Martin (No 23) [2026] FCA 56

ORDERS

THE COURT ORDERS THAT:

1.    The relief sought by the first respondent at (3) and (4) of her interlocutory application filed 9 July 2024 is refused.

2.    The interlocutory application of the first respondent filed 28 January 2026 is dismissed.

3.    The further hearing of the interlocutory application of Thomas Martin for leave to intervene filed on 28 January 2026 is adjourned to a date to be fixed, unless earlier determined on the papers.

4.    If the applicant seeks to rely on any further evidence in opposition to the interlocutory application in (3), that evidence must be reduced to the form of an affidavit and filed no later than 4.00pm on 10 February 2026.

5.    Whether or not the applicant engages order (4), he and Thomas Martin must file a short submission not exceeding two pages as to whether the application in (3) may be finally decided on the papers or requires a further hearing by 4.00pm on 11 February 2026.

6.    The costs of all applications heard on 2 February 2026 are reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCELWAINE J:

1    This proceeding was commenced on 12 August 2020. To date it has spawned 23 interlocutory judgments, plus more in separate leave to appeal applications, and 123 interlocutory and case management orders. The electronic court file contains over 250 filed documents. It is imperative that further interlocutory skirmishing should be dealt with quickly and with short form reasons, but not so short as to attract criticism for perfunctoriness.

2    On 21 November 2025, I made orders fixing the proceeding for trial to commence on 8 April 2026, with an estimate of four weeks. I also made detailed case management orders designed to ensure that there is no more delay and the case is prepared efficiently consistently with the overarching purpose at ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (FCA Act). It is imperative that this long running matter be brought to trial. I also set 2 February 2026, as the hearing date for outstanding and any further interlocutory applications. Subsequently, I instructed my associates to email the parties to reinforce the necessity to file and serve any further applications, affidavits and submissions in a timely way. That was not complied with, which explains the bifurcation of the procedure for determining one of the interlocutory applications.

3    By application filed on 9 July 2024, the first respondent, Victoria Martin, seeks targeted discovery from the applicant, James Hillier. She relies on her affidavit of 9 July 2024. Despite the age of those documents, the solicitor for James Hillier did not provide a responding affidavit until 30 January 2026. I did not permit it to be read.

4    Victoria Martin for some years has been without legal representation. Her husband, Thomas Martin, is admitted as a legal practitioner but does not presently hold a practising certificate. Thomas is not a party to the proceeding. Victoria appeared remotely on 2 February 2026. She was distressed and could not present her arguments. I excused her from attendance and gave limited leave for Thomas to appear for her. Her state of distress is confirmed by medical evidence that she exhibits to her affidavit of 20 November 2025. There is no dispute about her condition. She is not presently fit to further participate in the proceeding and has the added burden of being the primary carer for one of her children who has intense special needs. The family resides some distance from the Adelaide registry. I have excused her from further personal attendance in the proceeding, if that is her choice, consistently with the relief she sought at paragraph (2) of her application filed 28 January 2026.

5    The targeted discovery application concerns documents relevant to a separate proceeding commenced by James in the District Court of South Australia. Some documents concerning it have been produced by James. Victoria contends there are more, and absent an affidavit, she cannot interrogate blanket claims for legal professional privilege. During the arguments, I urged that a pragmatic approach be adopted by James in that the cost of producing an affidavit is miniscule in the context of this proceeding. Eventually, I made an order without objection requiring James to file and serve within seven days a supplementary affidavit to dispose of the 9 July 2024 application. The balance of the application seeks to agitate matters that have been overtaken by subsequent events and need not be addressed. As such I refuse the relief sought in (3) and (4) of the application.

6    Victoria in the balance of her application filed 28 January 2026, seeks three orders: (1) that she have leave to be represented by Thomas; (2) that many of the case management orders made on 21 November 2025 be vacated, including the trial; and (3) that the trial proceed first by determination of separate questions. She relies on her affidavit of 28 January 2026, which was read without any requirement that she be cross-examined. Her affidavit is riddled with submissions, which I have ignored. Thomas made written and oral submissions in support of the application. With leave, Thomas provided a supplementary written submission on 4 February 2026, in which he repeatedly contends that the preliminary submissions of James must be limited to questions of law and that the application is only capable of being determined on a preliminary basis if the threshold for summary dismissal is met. I reject that submission. James’ submissions accept as correct the factual matters relied on in the affidavit of Victoria (and to the extent relevant, the affidavit of Thomas made on 27 January 2026) and proceed on the basis that on the face of the application and those facts there is no reasonable prospect that it can succeed by analogy with the summary dismissal power at s 31A of the FCA Act.

7    The basis for the representation order is Victoria’s medical inability to further participate in the proceeding, the need to care for her son, the personal toll of this litigation on her, her inability to secure legal representation and the injunction ordered by Charlesworth J on 29 March 2022, the effect of which is to restrain Victoria from dealing with the assets or revenue of the business in dispute except in the ordinary course of payment of business expenses. Those orders have been continued, and varied, from time to time. Notably, Charlesworth J varied the injunction on 17 August 2022, by providing for payments in consideration for work performed by up to two directors across all companies engaged under the Nordburger brand, not exceeding $500 per week.

8    James opposes the representation order. Many of his submissions were premised on the assumption that representation by Thomas is sought in his capacity as a legal practitioner, who does not hold a current practising certificate. In argument, Thomas has clearly stated that is not what is contemplated. He does not claim any right of appearance in his capacity as a legal practitioner. Accordingly, the issue is whether I should as a matter of discretion permit Victoria to be represented by Thomas?

9    Rule 4.01 of the Federal Court Rules 2011 (Cth) provides that a person may be represented in the Court by a lawyer or may be unrepresented. That rule may be dispensed with pursuant to r 1.34 and in the exercise of the general power at s 23 of the FCA Act: Hii v Federal Commissioner of Taxation [2019] FCA 1589; (2019) ATR 740 at [10] – [13], Logan J. In Ferrigno v Qantas Airways Ltd [2023] FCA 1044 at [24] – [29], Rangiah J, set out some useful principles and cautionary observations by other judges that great care should ordinarily be exercised before permitting a party to be represented by a non-lawyer advocate. Relevant considerations include the overall public interest in the efficient administration of justice, the overarching purpose, the complexity of the case and why a party has been unable or unwilling to obtain legal representation by a person entitled to practice in this Court.

10    The efficient administration of justice is the predominant consideration in this case. What cannot be gainsaid is the acute conflict of interest of Thomas and the Court’s lack of confidence in his ability to act objectively and independently. Let me explain. Thomas has confirmed that he will be a witness at the trial and has provided at least one affidavit to date. He is a person who is extensively referenced in the most recent iteration of James’ pleading - the sixth amended statement of claim filed 7 August 2025. Despite that James has not sought to include him as a respondent. Thomas in his affidavit of 27 January 2026 (in support of his separate application, and which was also read without any requirement for cross-examination) frankly discloses that his “personal interests” in the proceeding are extensive, that the statement of claim treats him “as if I was a party to the case”, but James implemented the deliberate strategy of not naming him as a party to “unfairly malign my character and obtain an outcome contrary to my interests”, that a purpose of that strategy “has been to isolate my wife… without support in the proceedings”, that he is accused in the statement of claim of engaging in a civil conspiracy and a fraud (with the consequence that he has a personal interest in refuting the allegations) and that his personal interests are “central” to the allegations made in the proceeding. He also accepted in oral submissions that his personal interests align with Victoria’s.

11    Thus it is clear that objectively Thomas would not act with independence and impartiality if he were permitted to act as Victoria’s advocate. Fundamentally, I will not permit Thomas to be a witness and advocate for Victoria where he is conflicted by his personal interests in the outcome, his role as a witness and the duty that the Court expects all advocates to fulfill (whether as qualified lawyers or not) which is to fairly, objectively and independently manage and present a case consistently with the overarching purpose. The analogy with cases which have restrained solicitors who lack independence is close and explains why: Michael Wilson and Partners v Porter (No 3) [2022] FCA 998 at [31], Stewart J; Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333 at [18] – [20], Kiefel CJ, Bell, Keane and Gordon JJ; and Michael Wilson & Partners v Cronan [2025] FCA 1588 at [205]-[209], Goodman J.

12    Indeed and closer to the present is the decision of Charlesworth J in Hillier v Martin (No 8) [2021] FCA 1272; (2021) 155 ACSR 395 where her Honour restrained Thomas from acting as the legal representative for the corporate respondent (of which he is also a director) because of his conflict of interest and lack of independence: [155] – [169].

13    Whilst the matters raised by Thomas in submissions are also relevant (the impact of the injunction, lack of financial capacity to obtain legal representation, Victoria’s health and her need to care for her child and the complexity of this case) each is substantially outweighed by Thomas’ obvious lack of independence and objectivity. I also record that Thomas in submissions contended, without supporting evidence, that very many attempts have been made by Victoria to secure legal representation. Even if that were to be established by evidence it does not outweigh the independence consideration. For completeness, I also record that no application has ever been made to vary the injunction so as to make further financial allowance for Victoria to obtain legal representation. Accordingly, I refuse this aspect of Victoria’s application.

14    That leaves her applications to vacate the case management orders and the trial and to proceed first to the determination of separate questions. I reject these applications. No proper basis was identified in the evidence or the submissions for the orders. This proceeding has a very regrettable pre-trial history, much of it caused by satellite applications brought by Victoria, including many unfounded and scandalous allegations. For example see the decisions in Hiller v Martin (No 6) [2021] FCA 1009; (No 8) [2021] FCA 1272; (No 9) [2021] FCA 1319; (No 15) [2022] FCA 996; and (No 22) [2025] FCA 507. The proceeding must be brought to trial where the events in issue concern conduct that began in December 2012 and a central allegation concerns a joint venture for the conduct of the business in issue that is said to have been agreed at a meeting in November 2014. Further delay simply cannot be tolerated, consistently with the overarching purpose. As to the separate question, it is now far too late to agitate whether there was an agreed joint venture and if not to summarily dismiss the claim. That question requires detailed forensic analysis and is not a suitable vehicle for separate determination at this stage.

15    Thus, I dismiss Victoria’s application.

16    Next there is the application of Thomas filed 28 January 2026, supported by his affidavit of 27 January 2026. I permitted the affidavit to be read over objections that it contains much by way of submissions. I can make that distinction and not misunderstand the difference between arguments and evidence. Thomas was not required to be cross-examined. However, Mr Whitington KC for James took the point that it was delivered late and he wished to reserve his client’s position as to an answering affidavit, consistently with a direction that my associates conveyed to the parties by email on 29 January 2026. The outcome is that Mr Whitington first submitted that the application should be dismissed as a matter of principle and if not, he would wish to consider an answering affidavit. In retrospect that was not the most efficient manner of dealing with the application but so be it; that is where the procedure presently rests. On that basis I received submissions from Mr Whitington and Thomas.

17    Without specifying the rule, it became clear in submissions that in substance Thomas seeks leave to intervene pursuant to r 9.12 of the Rules. Consequently he also applies for vacation of the case management orders and the trial and for further case management orders to accommodate more interlocutory applications by him. In argument what he means by the latter was explained as determination of the same separate questions that Victoria sought to agitate followed by summary judgment. And, I infer from the tortuous and protracted history of this matter that consequential applications are unlikely to be so confined.

18    Essentially, Thomas puts his application on the basis that he is extensively referenced in the statement of claim (and the evidence of James as set forth in various affidavits) as a person who acted in concert with Victoria and other respondents (Stephen Williams a lawyer and his firm Norman Waterhouse) to deprive James of his interest in the joint venture business. James makes serious allegations of misconduct and dishonesty against Thomas and his reputation is in peril. In part Thomas submits:

The allegations made against me are such a fundamental and pervasive ingredient of the applicant’s claim that it warrants the Court granting me a right of audience in the within proceeding equivalent to that of a party.

19    The preliminary argument of Mr Whittington is very much focused on the application of Victoria and the absence of independence and objectivity points, which are also relied on to oppose the application of Thomas. However there were points of difference. The arguments of Thomas to the effect that he seeks to vindicate his reputation are insufficient to support a grant of leave to intervene coupled with his lack of independence and therefore objectivity.

20    The submissions continue that mere affectation of personal interests, including reputation, is not enough. Whilst it is correct that James seeks serious findings of misconduct, those matters will need to be put to Thomas if he gives evidence as foundational to the case. That is a matter of procedural fairness and absent it the findings sought cannot be made. It is also put that in several published interlocutory decisions in this matter, various judges have concluded that Thomas behaved inappropriately and has demonstrated that he does not have a proper understanding of the importance of complying with orders made by the Court and the apprehension that he will continue this conduct is another reason to deny his application. Submissions were also put to the effect that his application is somewhat open-ended: if intervention is permitted, will he be permitted to object to evidence, to cross-examine witnesses, to lead evidence in reply or would his participation be confined to submissions? Reliance is placed on Hillier v Martin (No 13) [2022] FCA 939, where O’Sullivan J refused an application by Thomas seeking to reopen argument on an earlier application of James and that he be granted leave as an interested non-party to appear and make submissions. His Honour concluded that Thomas lacked standing to bring the application. Reliance is also placed on Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 at 603, Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 and Lawrie v Lawler [2016] NTCA 3; (2016) 39 NTLR 1.

21    In Levy at 601-603, Brennan CJ was concerned with discretionary intervention as a matter of practice in the High Court (where no provision was made in the Judiciary Act 1903 (Cth) or in the High Court Rules 1952 (Cth) as then applied). His Honour emphasised that the discretion is exercised with the objective of affording adequate procedural fairness. Hence, there is a requirement to identify how the interests of the putative intervener will likely be affected. Being bound by the result is an obvious case, though indirect interests may be sufficient, if substantial. The exercise of the Court’s jurisdiction would become paralysed if any person with an indirect interest is permitted to intervene.

22    In this Court intervention is expressly provided for at r 9.12:

Interveners

(1)    A person may apply to the Court for leave to intervene in a proceeding with such rights, privileges and liabilities (including liabilities for costs) as may be determined by the Court.

(2)    The Court may have regard to:

(a)    whether the intervener’s contribution will be useful and different from the contribution of the parties to the proceeding; and

(b)    whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as the parties wish; and

(c)    any other matter that the Court considers relevant.

(1)    When giving leave, the Court may specify the form of assistance to be given by the intervener and the manner of participation of the intervener, including:

(a)    the matters that the intervener may raise; and

(b)    whether the intervener’s submissions are to be oral, in writing, or both.

Note 1: The Court may give leave subject to conditions—see rule 1.33.

23    The general considerations identified by Brennan CJ in Levy are relevant in the application of the rule. Like all discretions, much depends on the individual facts. Under the rule an intervener does not have the status or rights of a party: Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Company Pty Ltd (No 4) [2024] FCA 538 at [60]-[73], McElwaine J; Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Company Pty Ltd [2025] FCAFC 43; (2025) 308 FCR 153 at [82]-[83], Lee, Colvin and Stewart JJ; Forestry Tasmania v Brown (No 2) (2007) 159 FCR 467 at [5]-[12], Black CJ. Thus, it should not be assumed that if leave were granted that Thomas would acquire full participation rights as if he were a party. Also, leave may be conditionally granted by specifying the participation right and by expressly confining it. It may be subsequently withdrawn if the conditions are not met or the exercise of the right is not consistent with the overarching purpose or the standards of decorum that this Court expects to be observed.

24    The discretion to permit intervention is not confined to the matters in r 9.12(2) of the Rules including whether the intervener’s contribution will be useful and different: Sydney Trains v Australian Rail, Tram and Bus Industry Union (Leave to Intervene) [2024] FCA 1466 at [8], Wheelahan J. Contrary to some academic commentary that is not a mandatory criterion: cf. Zukerman A, Wilkins S, Adamopoulos J, Vial A, Hooper S, Oreb N, Jago C, Zuckerman on Australian Civil Procedure, LexisNexis (2023) at [13.32]. (There is a difference at r 36.32 of the Rules, applicable to appeals, which mandates demonstration of that matter amongst others).

25    The statement of claim makes many allegations about the conduct of Thomas as central to the relief sought. He is referenced by name more than 280 times. The case of James, at the risk of reductionist criticism, comes down to this. He devised the idea of producing hamburgers and other fast foods and is the creator of the intellectual property in the business known as Nordburger. In late 2012 he agreed with Victoria, and Andrew Craig, to be a participant in the Nordburger Joint Venture for the purpose of establishing restaurants to sell fast food under that name. The discussions continued and culminated in an agreement reached between the parties in or about late December 2012 to be participants in a joint venture with interests allocated as to 50% to James, 20% to Victoria and 30% to Andrew Craig (or related corporations). There were various further discussions concerning the entity or vehicle through which the joint venture would be conducted, but the discussions did not ever result in formal documentation of it or its terms. Nonetheless, substantial steps were undertaken to acquire premises, undertake fit outs and to proceed with the operation of the business.

26    By reason of certain steps undertaken by Victoria, James contends that she became a trustee of the business and the business assets for the benefit of herself, James and the Craig interests. In that capacity, she owed the usual fiduciary duties of a trustee.

27    The business prospered. By March 2015, the parties proposed a corporate structure for the joint venture and signed a head of agreement. Thomas was tasked with the responsibility of obtaining legal advice for the purpose of documenting the agreement. He was responsible for authoring several documents which contained express or at least implied acknowledgements of the joint venture and the respective agreed allocation of interests, each of which preceded an email from Victoria to Andrew Craig of 26 October 2015, which is said to constitute the equity representations that were made by Victoria. The equity representations were relied on by James.

28    The business relationship soured when in April 2016, James attended a meeting at the offices of Norman Waterhouse, which was also attended by Victoria and Thomas. At the meeting various representations were made to James that an accountant engaged to advise the joint venturers had engaged in serious misconduct and that, at least, Thomas had formed the view that James was complicit in that misconduct. Amongst other things, various demands were made of James that he provide information and he was induced to sign a Deed Poll. The effect of the Deed Poll was that James waived all claims that he or any entity controlled by him had to operate the business or to make decisions relating to it without first consulting Victoria, that he would not seek to operate the business and that he would cooperate with all of the reasonable requirements of Victoria or her advisers. This is labelled as the 29 April meeting conduct.

29    Further, Victoria by no later than 29 April 2016 claimed to be the ultimate economic owner of the joint venture and its assets to the exclusion of any legal or equitable interest of James. Thereafter, he was precluded from participating in the business of the joint venture, and from that time Victoria has received and dealt with all its profits.

30    Now, a central contention is that Thomas was a participant in a conspiratorial scheme with Victoria and Norman Waterhouse “to take control of the Nordburger assets and businesses held within the Nordburger Joint Venture from the Craig interests and [Victoria] and, thereafter, to claim ultimate economic ownership of such assets and businesses for [Victoria]”. This is labelled as the Plan. The Plan is said to have been dishonest by the ordinary standards of reasonable and honest people. Thereafter, the pleading is replete with references to asserted misconduct by Thomas, not only in taking steps pursuant to the Plan, but then engaging in a further conspiracy and the conduct of oppressive legal proceedings for the purpose of depriving James and the Craig interests of their entitlements pursuant to the joint venture. It is said that Victoria engaged in misleading or deceptive conduct by making the equity representations which, it will be recalled, are the representations said to have been made by Thomas acting as her agent. Claims are also formulated as amounting to fraud, undue influence and economic duress. The purpose of these claims is to have the Deed Poll declared void and set aside and for the rights of the parties to the joint venture to be restored. Compensation and an account are amongst the remedies sought. Many other allegations are pleaded against Thomas relating to later conduct, but all designed for the purpose of excluding James and the Craig interests from the joint venture.

31    This summary is of the essential aspects of the claims pleaded to page 20 of the 105-page statement of claim. I have not essayed all the conduct and misconduct that James pleads against Thomas. It is sufficient to note that he is a central character to the case. His conduct is inseparable from that of Victoria because of the detailed steps he is said to have implemented on her behalf. It is surprising, at the very least, that James did not join him as a party from the outset. He is repeatedly referenced in the balance of the 85 pages, or thereabouts, of the pleading.

32    I accept the general submission of Mr Whitington that it is not a sufficient basis to permit a person to intervene in a proceeding pursuant to r 9.12 of the Rules that he or she is referenced in a pleading in circumstances where no relief is sought or could be given against a non-party. I also accept that reputational interests whilst sometimes protected (Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 is a notable example) they are not generally regarded as a sufficient legal interest to permit intervention. I also accept that prior misconduct of Thomas as identified in some of the interlocutory decisions is a relevant matter to consider as a component of assessing whether his participation will be in accordance with the overarching purpose.

33    There is a proper basis to distinguish the reasoning of O’Sullivan J in No 13. His Honour was concerned with a standing question: whether Thomas could by interlocutory application as an “interested party” bring and prosecute an interlocutory application to reopen argument on the applicant’s earlier application for joinder of the Norman Waterhouse parties and for leave to amend. His Honour heard argument on 14 June 2022 and reserved his decision. Thomas applied to reopen whilst his Honour was reserved. Matters that his Honour considered and rejected as relevant to standing included the serious allegations pleaded against Thomas, his financial interest in the outcome, his reputation and that he may be exposed to civil or criminal liability. Whilst an interest sufficient to establish standing may overlap with an interest sufficient to allow intervention, standing is not to be equated with leave to intervene, perhaps conditionally and on a limited basis. Importantly, questions of standing arise in considering whether an applicant has a sufficient interest to obtain relief: Clarence City Council v Commonwealth [2020] FCAFC 134; (2020) 280 FCR 265 at [67]. An intervener does not seek relief. His Honour understood that when he distinguished the intervention cases as providing no support for the standing submissions of Thomas: [40]-[44].

34    However, this is arguably a very different case in that Thomas is a person central to the conduct that forms the pleaded case against Victoria and Norman Waterhouse. I therefore reject that the application should be dismissed on the preliminary submission that Thomas lacks the requisite interest to establish a basis for intervention by leave. I also reject two other preliminary submissions of Mr Whitington. One, that the past conduct of Thomas is a reason to refuse his application. As I observed during the oral arguments, he conducted himself politely and appropriately. Future conduct is a matter for future determination, if an issue arises and if sufficiently serious may lead to revocation of leave to intervene. The other, that Thomas’ lack of independence and objectivity is determinative of the application. Lacking objectivity as an intervener, who seeks to vindicate his or her personal reputation by seeking to test and ultimately refute serious allegations of misconduct, does not raise the same acute difficulty where the individual seeks to act as an advocate for a party and must act objectively in the interests of the party. The point being that often the basis for intervention is self-interest and where in this case a limited grant of an intervention right may quarantine the personal interests of Thomas from the issues pressed against Victoria as a party. It is a relevant consideration in this case when all intended evidence is adduced.

35    I express no concluded view on the merit of Thomas’ application. I will decide it after Mr Whitington advises whether James wishes to put on affidavit evidence in response to the affidavit of Thomas. That may lead to a further interlocutory hearing, if there is a cross-examination application that is allowed. Necessarily however James must be put on a tight timetable to make that decision and to provide an affidavit if that is the determination. I will allow two business days from publication of these reasons.

Associate:

Dated:    6 February 2026

SCHEDULE OF PARTIES