Blacktown City Council v Wilkie & Ors

M REID T/AS GRAVEYARD RECYCLING and also t/as THE GRAVEYARD RECYCLING

By their Notice of Motion filed 30 April 2001, the second and third Respondents seek review of the decision of the Registrar fixing 4 and 5 June 2001 as the hearing dates for the pending class 4 application in which the Applicant (the Council) claims prohibitory and mandatory injunctive relief against the Respondents' use of land known as part lot 2 DP 781151, situate at the corner of Grange Avenue and Riverstone Rd, Marsden Park. The Motion invokes the jurisdiction vested in the Court by Part 3 r 9 of the Rules of Court.

The grounds for review are set out in the Motion as follows: (a) The Registrar fixed the proceedings for hearing on 4 and 5 June, 2001 being dates on which Counsel retained by the Second and Third Respondents from the outset of the proceedings was not available to appear. (b) The dates were also stated by the solicitor for the Applicant to be inconvenient to him. (c) The fixing of the matter for hearing was said to be in pursuance of a policy of the Registrar to fix matters for hearing regardless of the convenience of Counsel. (d) The said policy was liable to and did cause injustice and unreasonable expense by depriving the Second and Third Respondents of the privilege of choosing their own legal representative. (e) Change of Counsel was liable to and will in fact cause additional unnecessary expense to the Second and Third Respondents and thereby visit unnecessary hardship upon the Second and Third Respondents. (f) The Second and Third Respondents offered several alternative convenient dates for the hearing, 4 and 5 June, 2001.

The Council opposes the vacating of the fixed hearing dates (this being the inevitable result if the second and third Respondents' Motion is upheld).

Although the grounds for reviewing the Registrar's decision are not substantiated by any affidavit evidence (such as could have been expected to be prepared by the Solicitor for the second and third Respondents) I am invited to regard the grounds as being self-evidently validating, on the basis of the fact that Counsel retained by the second and third Respondents is not available on the fixed hearing dates, as the Registrar was informed on 18 April 2001. From this basal fact, I am invited to infer conventional as opposed to particular prejudice or disadvantage to the second and third Respondents if they are compelled to obtain different legal representation at the trial.

The Council's Solicitor, in his sworn affidavit deposes to what occurred at the Registrar's callover held on 18 April 2001 when the hearing dates were fixed. On that occasion, he sought the "earliest possible hearing dates" and accepted the dates that were ultimately allocated, although they did not personally suit him.

In adjudicating upon the Motion, it must at the outset be emphasised that requests for such reviews obviously are not common and in order to ensure the efficient administration of the business of the Court, including the most efficient utilisation of judicial resources, requests for such reviews are not to be encouraged. It follows that as a general approach, the Registrar's decisions fixing hearing dates will only be set aside by the review process provided by the Rules of Court, if it can be shown that there are cogent reasons for interfering with what is conventionally accepted as one of the Registrar's principal functions in the overall discharge of the business of the Court.

In order to fairly review the Registrar's decision it is, I think, necessary to understand the litigation history of these proceedings leading up to 18 April 2001 when the hearing dates were fixed.

The proceedings were commenced on 21 February 2001 and were made returnable on 28 February 2001 for the purpose of entertaining the Council's claims to interlocutory relief (both a prohibitory and mandatory injunctions were sought).

Upon that return date, the Duty Judge was not able to hear the claims to interlocutory relief, but granted leave to the Council to obtain an urgent hearing in the following week.

On 6 March 2001, Lloyd J heard the Council's claims to interlocutory relief in contested proceedings. His Honour dismissed the Council's claims in his extempore judgment delivered at the end of the hearing.

Thereafter, his Honour stood the matter over to the Registrar's callover on 20 March 2001 for the purpose of giving directions, when appropriate directions were given, and the matter was stood over to 18 April 2001 for the purposes of fixing hearing dates.

Upon the basis of the foregoing litigation history, the question arises whether in fixing the hearing dates, significant consideration should have been given to the legitimate desire of the second and third Respondents (who are the principal respondents in the proceedings) to be represented at the final hearing by the Counsel whom they had briefed in the matter from the beginning of the litigation. (He had also not been available to represent the second and third Respondents at the hearing of the Council's claims to interlocutory relief when his clients were represented by another barrister. However, it must be noted that that hearing date had been allocated upon the basis of the first available date being allocated to hear the Council's claims to urgent interim relief).

Having regard to the following facts:- (a.) the very short litigation history; (b.) the dismissal of the Council's claims to interlocutory relief; (c.) no expedition of the final hearing has been granted; (d.) the stakes involved in the case (including the threat to the continuation of the business concluded by the second and third Respondents); (e.) the capacity of the Court to hear the case as early as July this year; and (f.) the capacity of the Court to utilise the fixed hearing dates for the hearing of any case(s) that can be fixed for 4 and/or 5 June 2001;

I am of the opinion that the Registrar's decision fixing 4 and 5 June 2001 as the hearing dates did not pay sufficient (if indeed any) regard to the legitimate desire of the second and third Respondents to be represented by Counsel of their choice who had been briefed from the beginning of the litigation (and whose unavailability did not impede the determination of the Council's claims to interlocutory relief).

The disregard of the legitimate desires of the second and third Respondents in the present context, in my respectful opinion, involved reviewable error. I hasten to add that this is not to say that the "convenience of Counsel" (meaning of course, not the personal convenience of Counsel, but the convenience of a litigant to retain the services of Counsel of his choice) is to be given overriding weight or consideration in the fixing of hearing dates. However, ordinarily it is a factor that will be taken into account.

Nonetheless, the principal objective in fixing cases that are ready for trial (such as is the present case) is to ensure that judicial resources of the Court are utilised with maximum efficiency in the interests of justice, which is a result that must be in the best interests of all litigants (pending and future) including, of course, the present parties.

Where such an objective can be readily achieved (such as in the present case) the legitimate interests of litigants to be legally represented by Counsel of their own choice should generally be recognised and reasonably accommodated in the allocation of hearing dates. In exceptional circumstances (eg where an urgent hearing is justified or required as occurred in the present case with the hearing for interlocutory relief) such a recognition and accommodation may not be possible, but nonetheless, the interests of justice and the efficient utilisation of the Court's resources are attained by such result.

In the particular factual context of the present case, there was, in my judgment, no justification to apply as an inflexible policy, the allocation of hearing dates "irrespective of the convenience of counsel".

At the conclusion of argument, I enquired of the parties as to the availability of alternative dates which were mutually convenient to the parties for the Court to hear the case if the fixed dates were to be vacated. Later in the day I was informed that mutually convenient dates were 14 and 15 August 2001. However, earlier dates in July are available for allocation if the parties seek them. But irrespective of what substitute hearing days are allocated, the Council is not precluded from bringing further claims for interlocutory relief if circumstances were to change (as indeed was foreshadowed in the Council's Solicitor's letter to the Solicitor for the second and third Respondents sent immediately following the decision of Lloyd J dismissing the Council's claim to interlocutory relief).

Accordingly, and for all the foregoing reasons, I make the following orders -

1. The Registrar's decision of 18 April 2001 fixing 4 and 5 June 2001 as the hearing dates for the proceedings is set aside.
2. Leave granted to the parties to seek substitute hearing dates which are mutually convenient to each party.

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