Notwithstanding the submissions made by the applicants, having regard to the legal principles and statutory framework outlined above, in my view, the application to vacate the hearing dates must fail.
First, and without in any way determining or prejudging the matter, based on the evidence presently before the Court it would appear that the utility of the development scenario 4 may be limited given the manner in which the parties' valuers have valued the easement in the joint valuation report. The applicants have filed no evidence and given no indication as to whether a scenario involving a commercial development on Lot 10 would result in greater compensation to the applicants than any of the other three scenarios. It is, on its face, difficult to understand how a commercial development scenario would be materially different from the shoptop housing scenario considered by the valuers. The sales relied upon by Mr Lunney are B4 - Mixed Use zoned sales (such as Lot 10) and sales of adjoining sites zoned R3 - Medium Density Residential. The 'sale' (the adjoining triangular parcel of land owned by RMS as the result of a compulsory acquisition) relied upon by Mr Phippen is similarly of adjoining land zoned B4 - Mixed Use. It is therefore at least arguable that any commercial potential of the easement land will be embedded in the value adopted by the valuers to determine the market value of the easement.
Second, as SWC correctly submitted, Mr Perkins did not identify any new fact, matter or circumstance which gave rise to the need to consider scenario 4. It was not raised by the applicants' town planning expert, Mr David Haskew, an experienced town planner. Nor does it emanate from the joint town planning experts's report prepared by Mr Haskew and Mr Garth McKenzie on 8 May 2019.
Moreover, no explanation whatsoever is provided for the applicants' delay in seeking to rely on scenario 4. More than four weeks passed between the date that the joint town planning report was filed (10 May 2019) and the additional scenario being raised (12 June 2019). No explanation whatsoever is proffered by the applicants for this passage of time. Instead, the issue was raised at a time when the applicants were aware that the valuers were engaged in joint conferencing (their report was delivered to the parties on 14 June and was filed on 17 June 2019). In addition, the issue was raised less than two weeks prior to the hearing, with the matter having been set down since the end of January 2019.
Had an application for supplementary town planning evidence dealing with scenario 4 been made in a more "timely" (to use Mr Perkins's language) way, the parties may have been able to address the additional scenario and maintained the hearing dates. Neither party suggested that this was possible at this late stage.
Third, although SWC properly conceded that the prejudice to it would be largely that of costs - the costs thrown away occasioned by any vacation of the hearing dates and the costs of any additional supplementary evidence required to meet the scenario 4 - it does not follow that the hearing should not be vacated. In Class 3 compulsory acquisition proceedings it is typically the acquiring authority that pays the dispossessed party's costs, even in circumstances where the dispossessed party is not wholly successful in being awarded the full sum of compensation claimed in the proceedings. Accordingly, it is likely that the additional costs incurred by SWC as a consequence of the hearing being vacated will never be recovered by it. It is noted, in this regard, that the applicants have not offered to pay SWC's costs thrown away occasioned by the vacation of the hearing.
In short, because these proceedings have been extant since May 2018, it is entirely reasonable for SWC to expect that, absent good reason, these proceedings should be completed expeditiously. This is consistent with the overriding purpose in s 56 of the CPA of the "just, quick and cheap resolution of the real issues in the proceedings". There being no good reason offered by the applicants, the motion should be dismissed.
[2]
Costs
Having been successful on the motion, SWC sought an order for costs. This was not opposed by the applicants and it is appropriate to make such an order in all the circumstances of the motion.
[3]
Orders
The orders of the Court are therefore as follows:
1. the notice of motion filed by the applicants on 13 June 2019 is dismissed;
2. the applicants are to pay the respondent's costs of the motion;
3. time extended for the applicants to file and serve their points of claim to 4.30 pm on 18 June 2019;
4. time extended for the respondents to file and serve its defence to 4.30 pm on 20 June 2019; and
5. the exhibits are to be returned.
[4]
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Decision last updated: 19 June 2019
Legal Principles to be Applied to the Vacation of Hearing Dates and the Relevant Statutory Framework
The principles applicable to motions to vacate or adjourn hearings were succinctly put by Ward JA in Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 (at [13]):
13. The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court.
Her Honour's approach was adopted and applied recently by Robson J in Burwood Council v Iglesia Ni Cristo [2019] NSWLEC 75 (at [20]-[23]). I respectfully do the same.
With respect to the latter factor identified by Ward JA, namely, "considerations relating to the administration and management of matters in" the Court, in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175, French CJ made the following observations (at [24] and [27], footnotes omitted):
24. The Judicature Acts and associated Rules of Court are reflected in rr 501 and 502 of the ACT Rules. The ACT Rules, like their precursors, confer the discretion to give leave to amend and impose the duty to make amendments for the purpose of deciding the real issues in, and avoiding multiplicity of, proceedings. The discretion is exercised in the context of the common law adversarial system as qualified by changing practice. But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. These are matters which, even under the Australian versions of the Judicature Act system, unaffected by the sequelae of the civil procedure reforms of 1998 in the United Kingdom, are to be regarded as both relevant and mandatory considerations in the exercise of the discretion conferred by rules such as r 502.
…
27. The observations made in the two joint judgments in Sali were linked to the particular knowledge that a judge or court, called upon to exercise a discretion to adjourn, would have of the state of that court's lists. However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur. In that connection, there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn.
The vacation of hearing dates at short notice means that the Court is unable to fill the vacancy in its diary with other matters. This is an inefficient use of the Courts' resources. Moreover, the taking of hearing dates by parties when the matter is not ready to proceed denies other parties in other matters the opportunity of having their proceedings heard and determined earlier.
The statutory scheme constituted by the Civil Procedure Act 2005 ("CPA") includes the following provision relating expressly to adjournments contained in s 66(1) of that Act:
66 Adjournment of proceedings
(1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings.
The power to adjourn proceedings is not, however, unfettered. An express mandatory consideration is referred to in s 58 of the CPA, which relevantly provides that:
58 Court to follow dictates of justice
(1) In deciding:
(a) whether to make any order or direction for the management of proceedings, including:
…
(ii) any order granting an adjournment or stay of proceedings,
…
the court must seek to act in accordance with the dictates of justice.
(2) For the purpose of determining what are the dictates of justice in a particular case, the court:
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant:
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56(3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.
Section 56 of the CPA describes the "overriding purpose" of CPA as follows:
56 Overriding purpose
(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
(3A) (Repealed)
(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3):
(a) any solicitor or barrister representing the party in the proceedings,
(b) any person with a relevant interest in the proceedings commenced by the party.
(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. …
The provisions contained in s 57 are matters that are directed to efficient management of the Court's business:
57 Objects of case management
(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:
(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).
And with respect to delay, s 59 of the CPA provides as follows:
59 Elimination of delay
In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.