Solicitors:
Sylvester Joseph, Cole & Butler (Applicant)
Russell Booby, Bell & Johnson (Respondent)
File Number(s): 2016/187189
[2]
EX TEMPORE Judgment
By notice of motion filed 27 July 2016, the applicant, represented by Ms Irish of counsel, seeks to vacate the hearing set down for three days from 16 August commencing at Moree. The respondent, represented by Mr Russell of counsel, opposes the applicant's motion. The motion also seeks consequential amendments to detailed orders made by consent before the Registrar on 4 July 2016.
In support of the motion, the applicant relies upon the affidavit of Sylvester Martin Rodrick Claudius Joseph, sworn 22 July 2016, and tenders a bundle of documents of 137 pages comprising various earlier draft and made short minutes of order and correspondence both between the parties and between individual parties and the Court. That bundle became Exhibit 1.
The background to these Class 3 appeal proceedings can be briefly stated. The subject matter of the appeal is a decision, Mills v Local Lands Services [2015] NSWCATAD 207, given on 13 October 2015 by the Civil and Administrative Tribunal of NSW, sitting in its Administrative and Equal Opportunity Division ('the Tribunal'). The Tribunal, constituted by Senior Member Montgomery, confirmed a decision of the Local Land Services NSW, a Government agency, to refuse to issue a long-term grazing permit to the applicant. Although not necessary, some understanding of the statutory provisions is important to today's application.
Part 6 of the Local Land Services Act 2013 makes provision in relation to travelling stock reserves. In particular, s 79(1) provides for an application for a permit to be made to the Local Land Services. The applicant in these proceedings made such an application. Local Land Services refused to issue a permit. Section 86 of the Local Land Services Act provides for an appeal to the Tribunal.
Schedule 3 of the Civil and Administrative Tribunal Act 2013, which relates specifically to the Administrative and Equal Opportunity Division of the Tribunal, provides for an appeal from the Tribunal to the Land and Environment Court.
As I noted, the Local Land Services refused to issue a long-term grazing permit. The applicant was informed of that decision on 7 January 2015 and appealed to the Tribunal in early February 2015, and in May and June 2015, over three days, the Tribunal heard the applicant's appeal.
On 13 October, the Tribunal confirmed the earlier decision to refuse to issue the long-term grazing permit, and on 11 December 2015, the applicant commenced these Class 3 proceedings.
In support of its application to vacate the hearing, the applicant relies primarily on three matters. The first matter is the applicant's desire or intention to rely upon further evidence. That evidence comprises, as I understand it, an affidavit yet to be finalised of an expert, Dr Ross Jenkins, in relation to what is termed "geo-spatial analysis of aerial imagery". In his affidavit, Mr Joseph states that Dr Jenkins was anticipated to have prepared his report by the middle of the week ending 29 July. That is the middle of last week. That has not happened. Despite this, I am told that Dr Jenkins has prepared a draft report, which has been provided to Ms Irish's instructing solicitors. The Court has not been informed - I do not say this critically - of the nature of the affidavit, but it is proposed to contain geospatial analysis of aerial imagery, presumably in relation to the historical existence of a fence.
The second aspect of the further evidence sought to be relied upon - I will come back to Dr Jenkins - is lay evidence of Mr Reece Mills. Mr Reece Mills manages the property owned by the applicant and the applicant's wife, Kay Denise Mills.
The second matter relied upon is the failure of the respondent to have responded to a notice to produce issued by the applicant. The notice to produce is at page 89 of Exhibit 1. I note that the covering letter serving the notice to produce (at page 85 of Exhibit 1), requires the documents to be inspected by 29 July, which was last Friday.
The third matter grounding the application is an outstanding request for particulars, which is before the Court at page 83 of Exhibit 1, whereby the applicant's solicitors seek further and better particulars of a particular phrase consisting of three words, being "including its exigencies", which appear in seven or eight paragraphs of the respondent's supplementary statement of facts and contentions dated 19 May 2016.
The notice to produce appears to have been only just out of time, in terms of the production of documents. That is not a matter which would on its own be determinative. The request for particulars, given the nature of the particulars sought, in my view, does not itself carry a great deal of weight in relation to the application for vacation, primarily because the request dated 15 July 2016 seeks particulars to the respondent's supplementary statement of facts and contentions, which itself was dated 19 May 2016, some two months beforehand.
Having read the material and having heard detailed submissions from counsel, I am not persuaded that the hearing should be vacated.
In relation to the applicant's desire to rely upon Dr Jenkins' anticipated evidence, whilst the Court was informed of the nature of the instructions given to Dr Jenkins, there is no detail of what his evidence will be. As such, I cannot determine whether or not the material would be of assistance or relevance, and the evidence of Mr Joseph in that regard is not compelling. Although Mr Joseph deposes to the fact that Dr Jenkins informed him of certain matters, there is nothing in the evidence before the Court that would justify a vacation on the basis that something that may, or may not, be in an expert report.
Ms Irish reminds me, that the orders made on (and possibly before) 4 July, made provision specifically for expert evidence. That on its own, in my view, does not in any way change the situation.
I am less concerned in relation to what may or may not be in Mr Reece Mills' "draft affidavit" as referred to in the material. I do not anticipate that his evidence would be of such concern as to warrant any vacation of the hearing, however until that evidence is marshalled and is sought to be relied upon read by the respondent, no view can be expressed.
In addition, the applicant's solicitors had earlier indicated to the Registrar that the applicant will seek to rely upon the transcript of evidence given by Reece Anthony Mills in the Tribunal hearing on 15 June 2015 (page 87 of Exhibit 1). The mere fact that Mr Reece Mills may give some further evidence of unknown nature and extent, is not determinative, in my opinion, in relation to the vacation application.
The reliance upon the respondent's suggested failure to respond to the notice to produce at page 89 of the bundle, is not compelling, as I indicated earlier. The material was only sought by the applicant on 15 July and was not required to be produced until last Friday.
Further, the suggested outstanding request for particulars at page 83 of Exhibit 1 does not, in my view, add to the argument for vacation. As I indicated earlier, the request was made on 15 July. It relates to the three words I quoted earlier, which appear in the respondent's supplementary contentions filed some two months ago.
Vacating hearing dates that have been fixed by consent some time ago, in the absence of good and substantial reasons, is not consistent with the provisions of s 56 of the Civil Procedure Act. In accordance with ss 57 and 58, the interests of justice are to be observed when exercising discretionary power of the kind presently involved, however, the interests of justice are not to be equated with the interests of a particular party. They must reflect the interest of all parties, as well as the interest of other litigants who are awaiting hearing of their cases with the expectation that they will be disposed of in an orderly and expeditious manner.
Another matter which I take into account, although not determinative, is the background of this appeal. The fact that the applicant indicated some time ago, in court orders, that it intended to marshal certain evidence does not, on its own, warrant a vacation when it does not marshal that evidence, and seeks, within two weeks of hearing, a vacation thereof. The slippage in the timetable is of some concern, however it is primarily attributable to the applicant's conduct. I note the submissions made by Ms Irish in relation to the somewhat difficult circumstances of her instructing solicitor, being in a small firm in Moree, and the fact that he has had other important and serious commitments, however, even taking into account those matters, I am not persuaded.
Although not determinative, it is clear from the documentation that I have seen that each of the parties, particularly the applicant, intends to rely upon much of the evidence that was before the Tribunal. In those circumstances, where the parties - and in particular the applicant - have been well aware of the nature and extent of the case each intends to run, I am of the view that vacation should not be allowed.
I am prepared to give consideration to an amended timetable in relation to matters that remain outstanding. I invite the parties to discuss this with each other. I shall allow a short adjournment now. If an agreement cannot be reached I will give orders in relation to the further conduct of the matter later today.
[3]
Amendments
08 August 2016 - Reference to 16 May in para [1] changed to 16 August
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Decision last updated: 08 August 2016