Vaughan v Dawson [2005] NSWSC 33 | Case summary

1 HIS HONOUR: This is a matter in which removal is sought of two caveats. The caveats are over some land at Balmain in the development of which the plaintiffs are involved. 2 The plaintiffs filed a notice of motion seeking expedition on 4 January 2005, returnable today. That notice of motion stated that the orders were sought upon the basis of two specific affidavits. Those affidavits are affidavits which were sworn for the purpose of the principal proceedings. They are the only affidavits filed by the plaintiffs so far, and seem to tell the whole story of the plaintiffs' involvement in the development. One of the affidavits refers repeatedly to documents contained in a bundle of documents. The substance of the affidavit is not fully comprehensible without access to that bundle of documents. Being an exhibit, of course, that bundle of documents was not filed. 3 Today, the applicants for expedition sought an order that they be granted leave to file a further affidavit, within a short period of time. The legal representative for the respondents to the application for expedition, sought to have it stood over to enable some settlement discussions to take place, and tendered some documents which he contends raise a case for expedition not being appropriate. The legal representative for the applicant tells me, from the Bar table that there are answers to the matters on which the respondent relies. 4 The application for expedition has come before the Court in a condition where the Court is simply not able to deal with it. 5 It is appropriate, as there have been numerous departures from the proper procedure for the running of the Expedition List in several cases in today's list, to re-state some matters concerning Expedition List procedure. 6 Practice Note 43, issued in 1987, is the only statement made by the Court as an institution, of the manner in which the Expedition List will operate in the Equity Division. That Practice Note remains operative, but because it is in general terms it does not state all matters that are relevant to the practical operation of the list. 7 Cases of any length can be expedited, if appropriate. However the practicalities of finding available days in the Court's calendar will sometimes mean that it is easier to obtain an early expedited hearing for a shorter case than for a longer one. Depending on the commitments of the Expedition Judges, if a case will take longer than 5 days it might not, and if it will take longer than 10 days it probably will not, be able to be heard by an Expedition Judge. For such a case, however, if the Expedition Judge is persuaded that the case deserves an early hearing, it may be possible for the Expedition Judge to make arrangements with the Chief Judge for a special fixture. 8 In Greetings Oxford Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at 42- 43 Young J said: "…when considering whether to expedite proceedings in this Division there are at least six factors which are taken into account. These are: (1) Is this the appropriate Court for the litigation, in particular: (a) does the litigation fall into the work normally done by this Court; and (b) is there a sufficient nexus with New South Wales. (2) Is there a special factor involved which warrants expedition. Usually these factors will be: (a) the loss of witnesses if the case is not fixed at an early date; (b) matters of public importance; (c) that the subject matter of the litigation will be lost if it is not heard quickly; (d) that the litigation to date has been delayed through no fault of the applicant; (e) that the applicant is suffering hardship not caused through his own fault; (f) that there is self-induced hardship (including those cases where corporate bodies fix a meeting date in the near future and then expect the Court to displace all other matters to hear their dispute before that date); (g) the nature of the case (for example, ejectment, child custody); and (h) that there are large sums of money involved. There may, of course, be other matters which can count as special factors, but the list that I have given is what occurs in the usual case. The health or age of parties or witnesses may, of course, come under (a), (c) or (e) or all of those headings. (3) Have the parties proceeded up to the date of the hearing of the motion for expedition with due speed? (4) Are the parties willing if expedition is granted to do all in their power to abridge the hearing time including joining in an agreed bundle of documents, preparing statements of witnesses, filing lists of objections to affidavits, making admissions of matters not really in dispute and restraining wide-ranging cross-examination. Of course there will always be cases where one party's interests are to delay resolution of the dispute as much as possible. Such cases can usually be recognised and special procedures adopted. Then there are two factors dealing with the exigencies of the list, viz: (5) Any application for expedition must be judged in the light of the number of other cases of equal or higher priority that also seek an expedited hearing. (6) Any "right" to expedition is a right to have the case fixed on one occasion. If, after a date has been fixed, it has to be vacated, it is difficult indeed to justify again expediting the proceedings: Ron Hodgson Cabramatta Pty Ltd v Wewoka Pty Ltd t/as B P Cabramatta Motors (Waddell CJ in Equity, 30 March 1989, unreported). The question here is whether there is a seventh guideline, namely, that one should not expedite a case where the chances of the applicant for expedition securing what it wants in the proceedings are not high. This point arises because the defendant submits that because of the matters I have already canvassed, the chances of the plaintiff obtaining equitable relief must, according to the defendant, be slim. I do not think that the Court, ought in an application for expedition, to make an assessment of the applicant's chances of success. However, I do agree that there is a seventh guideline, namely, that the Court should not expedite a case if it considers that in all the circumstances the chances of the applicant obtaining what it seeks in the litigation cannot be put as higher than speculative."

Those principles remain applicable. 9 At the risk of stating the obvious, I shall make some remarks about what is needed to enable the principles for granting expedition to work in practice. 10 The mode of making an application for expedition is by filing a notice of motion, which is made returnable before the Expedition Judge, seeking that the hearing of the matter be expedited or such other order as might be appropriate. When a case is stood over in the Expedition List, that notice of motion will be treated as being stood over. 11 To be able to prove any matters which an applicant for expedition asks the court to take into account in deciding whether to expedite a case, it is an elementary procedural necessity that there to be an affidavit which proves the matters which are relied upon for that application. 12 There are, broadly, two types of relief which are granted in the Expedition List. One is the giving of directions in cases which might possibly be suitable for an expedited hearing. The other is the fixing of a case for hearing on an expedited basis. On some occasions, it will be appropriate to both fix the case for hearing and on the same day give directions for preparation of the case for hearing. On other occasions, it will be appropriate to give directions, and defer the question of whether the case is suitable for an expedited hearing. An affidavit of grounds for expedition will be needed before either type of relief is given. If a case has been retained in the Expedition List for the giving of directions, but no hearing date has been fixed, a practitioner who seeks an expedited hearing date will need to consider whether the affidavit which was filed when the matter was first permitted to remain in the Expedition List continues to explain adequately the need for expedition, or whether an updating affidavit should be filed before an expedited hearing date is applied for. 13 Decisions about whether a case is to be expedited in any way should be able to be made solely on the basis of the affidavit filed in support of the motion for expedition, and any other affidavits which are filed for the purpose of the notice of motion and which supplement or contest the facts set out in that affidavit. It would rarely be appropriate to identify an affidavit that has been filed for the purpose of the principal proceedings, as the affidavit to be relied upon in support of expedition. 14 In many cases it will be appropriate for the solicitor for the applicant to be the deponent of the affidavit in support of expedition. The affidavit will be most helpful to the Court if it actually states all the factors that are relied upon to establish that the case is a suitable one to be expedited. One part of stating those factors will involve giving a concise account of the issues likely to be involved in the case. It is a specific requirement of Practice Note 43 that an affidavit in support of an application for expedition "should state the grounds for expedition and the issues which it is anticipated will arise." 15 It follows from this that it should not be necessary to read the pleadings, or the affidavits filed for the purpose of the principal proceedings, to understand what the issues are likely to be. 16 Simply stating the factors relied upon to establish expedition will sometimes involve the affidavit not complying with the rules of evidence. However, as that affidavit is one used in an interlocutory proceeding, in which the Court has power to dispense with the operation of a rule of evidence in appropriate cases (section 82 Supreme Court Act 1970, section 9 Evidence Act 1995), there is a fair chance that if objection is taken to such an affidavit the Court will be prepared to dispense with those rules, within the limits that section 82 Supreme Court Act allows. However, there may be some matters concerning which it would be desirable, even at the stage of seeking expedition, to give proof by more than a solicitor's affidavit. If, for instance, one of the bases of the application is that the health of a party or witness is such that expedition is needed, and that is not a matter which ought be clear to all the other parties, it would usually be prudent for the applicant to prove that state of health by better evidence than the say-so of a solicitor. 17 It is not appropriate for an affidavit seeking expedition to be very long. Any documents which need to be made part of the evidence on the application for expedition should be annexed, not exhibited, to the affidavit. 18 If there is any matter other than the reasons for expedition, and the issues, which the applicant is planning to ask the Expedition Judge to take into account in giving directions or setting the matter down for hearing on a particular date (such as that a particular judge has heard a related application, and therefore either should, or should not, hear the case for which expedition is sought, or that a witness is likely to be unavailable during a certain period), that also should be included in the affidavit. 19 The Expedition List is held on a Friday. If an applicant for expedition is to obtain any orders at all on the basis of the affidavit, it is necessary that it be both filed, and served, several days before that Friday. This is both to enable the other parties to the litigation to consider the affidavit (and put on affidavits which take issue with any contention in it which they dispute), and also to enable the judge to consider it in advance. Giving the judge the opportunity to consider it in advance is particularly important because in fixing cases for hearing the judge needs to consider the relative urgency of all the cases in the list. Save in unusual cases, if an affidavit giving grounds for expedition is not filed by the Tuesday of the week the notice of motion is due to be heard, the notice of motion will be dismissed. In cases of pressing urgency, it may be possible to obtain leave for short service of a notice of motion and affidavit seeking expedition. 20 Whether an expedited hearing is granted, or precisely when it is granted, depends, to some extent, on how long the case is likely to take. Thus, an affidavit seeking the allocation of an expedited hearing date should give an estimate of how long the case is likely to take. It is most important that such estimates be realistic, arrived at after considering the total number of witnesses to be called, the likely length of cross-examination, and the likely length of addresses. 21 It should not be assumed that any great weight will be given to the convenience of counsel when allocating a date for an expedited hearing. 22 In the hearing of an Expedition List on a Friday, cases will not necessarily be called in the order in which they appear in the printed list. Usually, however, the Expedition List will be dealt with in its entirety before the one-day list is dealt with. This will allow such early dates as are available to be allocated to cases in the Expedition List which are ready to take a date, and only then will such early dates as remain be allocated to case in the one-day list which are ready for hearing but of no particular urgency. 23 In the present case, the absence of an affidavit complying with the Practice Direction has meant that it has, in practice, not been possible to form a view about the urgency of the matter. For that reason, I dismiss the notice of motion seeking expedition. 24 As the proceedings are before me, it is open to me to give directions in the proceedings. I direct the plaintiffs to file and serve any additional evidence upon which they seek to rely by Wednesday 9 February 2005. **********

Vaughan v Dawson

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