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[2009] FCA 1085
procedural. The hearing date fixed for 30 October 2009 was vacated. The matter was set down for hearing in Sydney on 28 October 2009 at 9:30 am. The costs of the application were reserved.
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The parties jointly asked the Court to move a hearing date. Because another lengthy hearing had been adjourned, the Court had an opportunity to set a new date that accommodated the request. Flick J changed the listing and reserved the question of costs. The judge also used the reasons to express personal concern about judicial vacancies and their effect on the Registry’s capacity to hear cases promptly. Those observations provide context, but the judgment does not decide the underlying dispute or state a general legal test for changing hearing dates.
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2,028 words · generated 01/10/2026
This is a short procedural judgment of the Federal Court of Australia, delivered by Flick J on 24 September 2009 in Sydney. It concerns the scheduling of an outstanding part of an existing proceeding, not the substantive dispute between the applicants, Motor Trades Association of Australia Superannuation Fund Pty Limited and MTAA Superannuation Fund (Director Co) Pty Ltd, and the respondent, John Rickus.
The immediate issue was a consensual application to vacate a hearing date fixed for 30 October 2009 and find an alternative date. The date had been fixed on 14 August 2009 (para 2). The proceeding had already been heard in part. The judgment cites three earlier decisions in the same litigation: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878, Motor Trades Association Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117, and Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 3) [2008] FCA 1986, 69 ACSR 264 (para 2). The present reasons do not describe the substance or outcomes of those earlier decisions.
A four-week commercial hearing in another proceeding had recently been adjourned to April 2010. That created what Flick J called a “window of opportunity” to accommodate these parties’ wishes (para 9). The Court ordered that the 30 October hearing date be vacated, set the matter down for hearing in Sydney on 28 October 2009 at 9:30 am, and reserved the costs of the application (para 12).
The practical outcome is precise: the new hearing was listed two days earlier than the date that had been vacated. The reasons do not explain why that particular date was selected, beyond identifying the scheduling opportunity and the parties’ wish to be accommodated.
The judgment’s wider observations concern court capacity. Flick J said the New South Wales District Registry had lost four judges through retirement or resignation and that the failure to appoint replacements constrained the Court’s ability to resolve disputes as promptly as before (paras 4–7). The judge also referred to observations made by Justice Lindgren in Mark Alan Whittaker & Anor v Child Support Registrar & Anor (NSD204/2008), expressing agreement with those observations (para 8). Flick J expressly stated that the concerns in this judgment were his own views (para 11).
The reasons connect the order to the immediate availability of a hearing slot. The application was by consent, and the Court had an opportunity to accommodate the parties because another, much longer hearing had been moved to April 2010 (paras 2, 9). The judge said that, but for the vacation of that other proceeding’s hearing dates, there would have been “very little ability” to accommodate the parties (para 9). The decision therefore records a practical scheduling response to the circumstances then available.
The judgment does not set out a formal legal test for vacating a hearing date. It does not cite a rule of the Federal Court Rules as the basis for the order, nor does it examine competing submissions about prejudice, delay, or the merits of the underlying proceeding. The reasons call the application one that “hitherto would have been regarded as a routine application” (para 1). That description frames the application against the judge’s concern that court resources had become more constrained.
The staffing discussion explains why the judge regarded an apparently routine request as significant. Flick J identified four judges who had left the New South Wales District Registry: Wilcox, Sackville, Branson and Tamberlin. The judgment states their periods of service and describes their combined judicial service as about 65 years (paras 4–5). It also records that applications had been invited and made, but that their fate remained undetermined at the time of the judgment (para 6). The judge’s stated concern was that failing to appoint replacements constrained the Court’s ability to provide timely dispute resolution (para 7).
The reasons distinguish between the order in the parties’ case and the broader institutional commentary. The order is based on the available listing opportunity and the parties’ requested accommodation. The observations about appointments, staffing and access to justice explain the context and express Flick J’s own concern. The closing sentence makes that personal character explicit: “The concerns expressed remain my own views and I make them for myself alone” (para 11). The judgment should therefore not be read as announcing a general rule that every consensual request to change a hearing date must be granted, or as determining the legal consequences of judicial vacancies.
The judgment records a before-and-after change in this proceeding’s listing, rather than a change in legal doctrine. Before the order, the outstanding aspect of the proceeding was listed for 30 October 2009. After the order, it was listed for 28 October 2009 at 9:30 am in Sydney (para 12). Costs of the application remained reserved.
Nothing in the supplied reasons indicates that Flick J altered, clarified or applied a substantive rule about adjournments. There is no statutory interpretation, analysis of a procedural rule, or comparison of competing legal authorities. The judgment is short and practical. It records that the application was by consent, identifies the available hearing window and makes orders to change the date (paras 2, 9, 12).
Accordingly, the judgment’s contribution, on its face, is principally an account of how the Court dealt with this particular listing request and the constraints then affecting its capacity. Its comments about judicial staffing and timely access to the Court are statements of concern, not a new doctrinal test. The reasons also state that the Court would continue to make efforts to provide appropriate expedition within existing constraints (para 10).
The source text does not provide a general account of the law before this decision, or later statutory or procedural developments. It would not be grounded in this judgment to describe a broader evolution in Australian adjournment law. The narrow comparison supported by the text is the changed hearing date in this case, alongside the judge’s stated concern that future accommodation of similar requests might be difficult (para 9).
The application and existing listing (para 2): Flick J described an application “to vacate by consent” a hearing of an outstanding aspect of the proceeding, with an alternative date sought to suit counsel. In plain English, both sides agreed to ask the Court to change the existing date. The judgment does not report an objection by either party.
The Registry’s capacity (paras 4–7): Flick J listed four judicial departures and expressed concern that replacements had not been appointed. The judge’s point was that fewer available judges placed pressure on the Registry’s capacity to hear and decide matters promptly. The judgment presents this as the judge’s assessment of the institutional circumstances, rather than as a finding necessary to decide the underlying dispute.
Access to justice (para 7): The judge stated that access to justice was not promoted by renovated courtrooms without an adequate number of judges to sit in them. In plain English, the judgment emphasises that physical court facilities alone do not resolve a shortage of judicial capacity. This is part of the judge’s broader commentary, not a separate order or a rule applied to the parties’ substantive rights.
The opportunity in this case (para 9): The judge said that a four-week hearing in another matter had been adjourned, creating a “window of opportunity” to accommodate these parties. In plain English, the new listing was possible because another case no longer occupied the relevant time. The judge described that circumstance as fortuitous and said there would otherwise have been very little ability to make the requested accommodation.
The limits of future flexibility (para 9): Flick J observed that the ability to accommodate other litigants in a similar position “remains questionable”. This signals that the availability of a mutually suitable listing date could not be assumed. It does not establish that future applications would fail, because the reasons address no such application or set out a predictive test.
The orders (para 12): The operative result is straightforward: the 30 October date was vacated, the hearing was set for 28 October at 9:30 am in Sydney, and costs were reserved. “Costs reserved” means the judgment did not determine the costs of this application at that point.
The judgment is most closely connected to a narrow procedural fact pattern: an ongoing Federal Court proceeding has an outstanding hearing; the parties jointly request a change to the listed date; and a suitable listing opportunity becomes available because another proceeding has been adjourned. In this case, the request was by consent, the original date was 30 October 2009, and the available replacement date was 28 October 2009 (paras 2, 9, 12).
The decision also supplies context for understanding listing constraints. Flick J described the New South Wales District Registry as operating with fewer judges following four departures and expressed concern about the effects on timely hearings (paras 4–7). The judge’s discussion may be relevant to understanding why the Court treated the availability of a vacant hearing period as significant. But the judgment does not specify how staffing levels should legally affect a contested application, or what weight a court must give them.
The decision does not establish a general rule for applications made without consent, applications that would cause prejudice, requests made close to trial, or requests involving a different explanation for the proposed change. Nor does it determine what happens where no replacement hearing slot is available. Those circumstances are not analysed in the reasons. A careful reading keeps the decision tied to the consensual application and the unusual scheduling opportunity actually described.
The supplied judgment does not contain later judicial treatment of Rickus (No 4). It was delivered on 24 September 2009, and the source text provides no subsequent cases discussing, following, distinguishing, or applying this decision. No conclusion about its later reception can therefore be drawn from this material.
The references in paragraph 2 are to earlier decisions in the same litigation, not later treatment of this judgment. Paragraph 8 refers to Justice Lindgren’s observations in Mark Alan Whittaker & Anor v Child Support Registrar & Anor (NSD204/2008), which Flick J said he agreed with. That is a reference to observations made before this judgment, not evidence of how a later court treated Rickus (No 4).
The decision’s own stated scope is also relevant to assessing its potential significance. It resolves a scheduling application and expressly describes the staffing concerns as Flick J’s own views (para 11). The reasons contain no general procedural test that a later court could be said, on this text alone, to have adopted. Any account of later use would require later sources not included here.
The reasons leave several questions unanswered because they were not necessary to the disposition. They do not state a general legal test for vacating a hearing date, identify a procedural rule, or explain how a court should balance a consensual request against other cases’ listing needs. The judgment also does not address whether the outcome would differ if one party opposed the change, or if changing the date created identifiable prejudice or delay.
The judgment does not explain the precise listing considerations that made 28 October 2009 available, other than the adjournment of a four-week commercial proceeding to April 2010 (para 9). It also does not describe the parties’ reasons for wanting a different date beyond the stated wish to accommodate counsel (para 2). Those omissions should not be filled by assumption.
At the institutional level, the judge raised questions about the effect of unfilled judicial positions on the Registry’s capacity and future flexibility (paras 4–10). But this decision does not determine who was responsible for appointments, what appointment timetable applied, or what remedy or legal consequence followed from the vacancies. It records the concern and its practical context, then makes the listing orders.
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REASONS FOR JUDGMENT 1 Presently before the Court is what hitherto would have been regarded as a routine application, one which could be easily addressed and resolved. 2 It is an application to vacate by consent the hearing of an outstanding aspect of a proceeding which has previously been heard in part (Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878; Motor Trades Association Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117 and Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 3) [2008] FCA 1986, 69 ACSR 264) and to fix an alternative date to hopefully suit the convenience of all counsel. The existing date fixed for hearing is 30 October 2009. That date was fixed on 14 August 2009. 3 This Court has long prided itself on its ability to hear and resolve all matters falling within its jurisdiction in a timely and expeditious manner. 4 Its ability to continue to do so in the New South Wales District Registry of the Court is, however, coming under an increasing constraint. That constraint arises as a direct result of the failure to appoint new Judges to replace those who have either retired or resigned. The New South Wales District Registry has had the loss of four such Judges - His Honour Justice Wilcox, a Judge of this Court from 1984 to 2006; His Honour Justice Sackville, a Judge of this Court from 1994 to 2008; Her Honour Justice Branson, a Judge of this Court from 1994 to 2008 and His Honour Justice Tamberlin, a Judge of this Court from 1994 to 2009. 5 The loss to this Court as a whole, and especially the New South Wales District Registry, of such eminent and distinguished jurists who have served the Court and the community for a combined judicial period of about 65 years could not in any circumstances be easily addressed. 6 Advertisements were placed in newspapers by the Attorney-General's Department in about April 2009 inviting applications from members of the profession who wished to express an interest in appointment to this Court. Members of the profession have applied. The fate of all applications remains undetermined. 7 The continuing and unexplained non-appointment of Judges to replace those who have retired or resigned places serious constraints upon the ability of the Court to continue to provide the just resolution of disputes in as timely a manner as it has in the past. Access to justice is not promoted by the provision of renovated court rooms without also the appointment of an adequate number of Judges to sit in them. 8 The failure to make appointments has been the subject of observations made as recently as last Friday by His Honour Justice Lindgren at the conclusion of the hearing before His Honour in Mark Alan Whittaker & Anor v Child Support Registrar & Anor (NSD204/2008). Concurrence is expressed with the views His Honour then expressed. 9 In the present matter it is fortuitous that a commercial dispute in another proceeding which had been set down for hearing for a period of four weeks has recently been adjourned to April 2010. A window of opportunity thus presents itself to the present parties to accommodate their wishes. But for the vacation of the other proceeding, there would have been very little ability to do so. The ability to accommodate other litigants in a like position in the future remains questionable. 10 Within the constraints presently imposed, every effort will nevertheless be given to continue to grant such expedition as is appropriate to the hearing of every proceeding. 11 The concerns expressed remain my own views and I make them for myself alone.
ORDERS 12 The Orders of the Court are: 1. The hearing date presently fixed for 30 October 2009 is vacated. 2. The matter is set down for hearing in Sydney on 28 October 2009 at 9:30 am. 3. The costs of the present application are reserved. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.
Associate: Dated: 24 September 2009 Counsel for the Applicants: Mr FM Douglas QC with Mr F Assaf
Motor Trades Association of Australia Superannuation Fund Pty Limited
Rickus
The hearing date fixed for 30 October 2009 was vacated. The matter was set down for hearing in Sydney on 28 October 2009 at 9:30 am. The costs of the application were reserved.