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Alternatively, Application to Vacate Refused

1. Even if the Defendants had properly made out a basis of leave to make the application without the Notice of Motion, the application to vacate the Hearing would have been refused. The only evidence relied upon by the Defendants was the affidavit of Mr Gagic 29 October 2021 (Exhibit 1) which provided 2 paragraphs and annexes the Application for Assessment of Costs. No evidence was presented by the Defendants which would have justified vacating the Hearing, in any event.
2. Mr Young for the Defendants sought to rely upon annexures to Exhibit A to make out a submission that "the Defendants had difficulty obtaining legal representation in December and January" [MFI 4, paragraph 8].
3. In my opinion, the selective reference to the annexures by the Defendants was misleading. The affidavit of Mr Phontos must be considered in its entirety.
4. I should also observe that the Standard Orders for Hearing, provide: "[14] subject to sections 56-60 of the Civil Procedure Act, hearings will only be vacated or adjourned where there is a very good reason. This must be demonstrated by the parties seeking the vacation or adjournment. The unavailability of counsel, or the failure to comply with court orders or to properly prepare the matter for hearing, will not normally be sufficient reasons. [15] any application for an adjournment must be made by way of a Notice of Motion with affidavit in support and must be made at the earliest possible time"
5. In my opinion, the Defendants have failed to comply with both clauses 14 and 15 of the Standard Orders for Hearing. The Defendants failed to make out a "very good reason" and failed to file a Notice of Motion with an affidavit in support "at the earliest possible time".
6. The only evidence regarding the history of the proceedings is contained in the affidavit of Mr Phontos (Exhibit A).
7. I note that on 30 July 2021 Mr Phontos received a telephone call from James Burns of Australia Litigation Funding. In an email to Mr Freeman, Mr Phontos recounted the conversation with Mr Burns including the following: "[H]e said he was about to spend 30k to 40k and he has known Des Fagan for 30 years and his judgment should cause me difficulty, he is appointing Yates Biagi who are an aggressive firm and Andrew Fernin of counsel."
8. It was not disputed by the Defendants that that conversation took place and that Mr Burns was making representations on behalf of the Defendants. It follows that as long ago as 30 July 2021, the Defendants had been provided with litigation funding and access to legal representation. No explanation is provided for why that representation was not taken up or whether Mr Burns spent $30,000 - $40,000 over the weekend for the lawyers to prepare the matter for the Defendants.
9. Further, there is no explanation for the delay between 30 July 2021 when Mr Burns indicated that representation had been arranged and 31 January 2022 when the current lawyers were retained. Absent any such explanation the court's discretion could not be exercised favourably as the Defendants had failed to demonstrate that there was very good reason to vacate the Hearing date.
10. When Exhibit A was sought to be tendered objection was taken on behalf of the Defendants to Annexure A (a statement of Michael Photons dated 11 June 2021). It is unnecessary to refer to it in detail or even in terms. It is sufficient to note that on the day prior (10 June 2021) Mr Gagic and another man attended Mr Phontos' office and made threatening remarks in an attempt to persuade Mr Phontos to discontinue these proceedings.
11. Mr Freeman relied upon these threats, which apparently extended to Mr Phontos' family and to Mr Freeman and his family, to submit that vacating the Hearing date would be prejudicial to the Plaintiff.
12. Further, no explanation was offered by the Defendants as to why they failed to comply with the order made by the Judicial Registrar on 21 October 2021 (when fixing the matter for Hearing) that the Defendants serve evidence by 3 December 2021. Again, absent any such evidence, the court's discretion ought not be exercised in favour of the Defendants.
13. The overriding purpose of the Civil Procedure Act (CPA) and the rules of court "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" (section 56 CPA).
14. By reason of section 56(3) every party to a civil proceeding 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 the directions and orders of the court". The Defendants have failed to participate in the processes of the court. By way of example, when the Hearing was fixed, the Defendants failed to appear. By way of further example, the Defendants failed to serve evidence in accordance with the timetable set 21 October 2021. In respect of the application, the Defendants have failed to move the court by the filing of a Notice of Motion and have not put on evidence which would warrant the orders which they seek. The Defendant's conduct has been such that it has in fact frustrated the processes of the court and the courts capacity to comply with the overriding purpose of the Act and Rules.
15. Further, the Defendants conduct falls foul of the objects of case management set out in section 57 of the CPA. The delay which has been occasioned by vacating the Hearing date would have not only caused inconvenience and prejudice to the Plaintiff, but rendered inefficient the use of available of judicial and administrative resources. As the High Court observed in Aon Risk Services Australia Pty v Australian National University [2009] HCA 27 the time of the court is a publicly funded resource, French CJ continued: "[5] Inefficiency in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system."
16. Further, his Honour at [26] when considering an appeal from the Full Court of the Supreme Court of Victoria stated that: "[26]… the judge of the busy court is entitled to consider 'the effects of the adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties."
17. When the Defendant's application came before me on the day of the Hearing, a judge was available to hear the matter and, in fact, did so. The District Court of NSW is a busy court with about 3000 cases awaiting determination. Whilst the court is capable of managing that caseload it relies upon the exercise of diligence by the parties. The listing of any matter for Hearing displaces another matter from being heard at that time. The court has a strong record of reaching matters on the day on which they are listed. These are further relevant considerations in exercising the courts discretion.
18. The court in considering these applications is to act in accordance with the dictates of justice (section 58(1) CPA). In doing so I have had regard to sections 56 and 57 together with the specific consideration in section 58(2)(b) CPA, none of which assist the Defendants.
19. It is for these reasons that I made the orders refusing the Defendants' applications.