Campbell v Metway Leasing Limited [2002] FCAFC 47 Campbell v Metway Leasing Limited [2002] FCA 213 NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation. * All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. * All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only. FEDERAL COURT OF AUSTRALIA Campbell v Metway Leasing Limited [2002] FCA 213 KEITH MALCOLM CAMPBELL and LOIS AUDREY CAMPBELL v METWAY LEASING LIMITED and ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA (INTERVENOR) No N 1383 of 2001 SPENDER, NICHOLSON, NORTH JJ SYDNEY 5 MARCH 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1383 OF 2001 BETWEEN: KEITH MALCOLM CAMPBELL FIRST APPELLANT LOIS AUDREY CAMPBELL SECOND APPELLANT AND: METWAY LEASING LIMITED RESPONDENT AND: ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA INTERVENOR JUDGE: SPENDER, NICHOLSON, NORTH JJ DATE OF ORDER: 5 MARCH 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The hearing date for the appeal be vacated. 2. The appeal be adjourned to a date to be fixed. 3. There be no order as to the costs of the motion. 4. The Respondent have the costs thrown away by the variation of the hearing date, to be taxed if not agreed. THE COURT DIRECTS THAT: 1. The appellants file written submissions five clear days before the date of hearing of the appeal, those written submissions not to exceed 20 pages. 2. Any authority on which the appellants wish to rely be supplied in photocopy form to the Court with the relevant passages highlighted. 3. Submissions by the respondent and by the intervening party, again limited to 20 pages, be filed and served two clear days before the day appointed for the hearing of the appeal. Again, each of those parties is to supply to the Court photocopies of authorities on which that party wishes to rely, with relevant passages marked or highlighted. 4. If the appellants wish to contend for a chronology different from that which is exhibited to the affidavit of Mr Annis-Brown filed today, that amended chronology should accompany the filing of the written submissions. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1383 OF 2001 BETWEEN: KEITH MALCOLM CAMPBELL FIRST APPELLANT LOIS AUDREY CAMPBELL SECOND APPELLANT AND: METWAY LEASING LIMITED RESPONDENT AND: ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA INTERVENOR JUDGE: SPENDER, NICHOLSON, NORTH JJ DATE: 5 MARCH 2002 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 This is a notice of motion on behalf of the appellants in relation to an appeal from proceedings N1295 of 2000. The notice of motion seeks that the hearing date of the appeal (8 March 2002) be vacated; that leave be granted for short service; that the costs of the motion be costs in the cause; and such further or other orders as the Court sees fit. So far as the vacation of the hearing date is concerned, the basis for this motion is that, by what appears to be a significant and difficult to understand oversight, the availability of Mr Robert Ellicott QC, who appeared as senior counsel for each of the appellants before the primary judge, Katz J, was not secured prior to the matter being set down for 8 March 2002. 2 Mr Ellicott presently is unable to appear for medical reasons on the date appointed for the hearing of the appeal. It is submitted that, given the history of the matter and Mr Ellicott's involvement on behalf of the appellants, the appellants would be severely prejudiced were Mr Ellicott not able to argue the appeal on their behalf. 3 It has to be accepted that there is great force in that submission. However, the prejudice to the appellants must be weighed against the difficulties, if any, that would be suffered by the respondent and the intervenor, were the motion granted. Mr Skinner, who appeared as counsel for the respondent Metway Leasing Limited, argued only that, given the long history of litigation which is set out as part of the affidavit of Mr Annis-Brown, the hearing date should not be vacated. 4 Aspects of this matter have been argued in various courts over many years, and a few weeks or more delay, given the long litigious history of this case, is not of itself such a consideration for the interests of justice as would suggest that the hearing date should not be vacated. No other basis of prejudice was argued on behalf of the respondent. That being so, it seems to the Court that the hearing date should be vacated. The listing clerk or an officer of the Court will liaise with the solicitors for the parties as to the availability of counsel, consistent with the availability of the Court to hear this matter. The Court hopes that this matter can be heard in Sydney within four weeks, without any more inconvenience than necessary to counsel for the appellants, the respondent and the Attorney-General. 5 In respect of the costs of the motion, it appears that an order should not be made in favour of the appellants, as they sought by their motion an indulgence from the Court. On the other hand, the respondents to the appeal were asked to agree to the vacation of the hearing date; they declined and argued that there were circumstances why the Court ought not order a vacation of the hearing date. The respondents were thus not successful on the motion. Consequently, it is not appropriate that they should have the costs of the motion, having regard to those two circumstances. Looking at the matter in a rather broad brush way, the Court is of the view that there should be no order as to the costs of the motion. 6 As was accepted by Mr Bambagiotti, counsel for the appellants on the motion, it is appropriate for the Court to order that the respondent on the appeal, Metway Leasing Limited, have the costs thrown away by the vacation of the hearing date, those costs to be taxed if not agreed. 7 The appeal will be adjourned to a date to be advised to the parties in writing by the Registrar. The matter will, notwithstanding what has been said, comfortably finish in a day. 8 In respect of that appeal date, fresh directions are made as follows: 1. The appellants file written submissions five clear days before the date of the hearing of the appeal, those written submissions not to exceed 20 pages. 2. Any authority on which the appellants wish to rely be supplied in photocopy form to the Court with the relevant passages highlighted. 3. Submissions by the respondent and by the intervening party, again limited to 20 pages, be filed and served two clear days before the day appointed for the hearing of the appeal. Again, each of those parties is to supply to the Court photocopies of authorities on which that party wishes to rely, with relevant passages marked or highlighted. 4. If the appellants wish to contend for a chronology different from that which is exhibited to the affidavit of Mr Annis-Brown filed today, that amended chronology should accompany the filing of the written submissions. 9 The reason for photocopies is that each judge is from outside Sydney and, if the matter has to be reserved, it is more convenient if the authorities are kept together with the appeal papers. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 8 March 2002 Counsel for the Appellant: Mr P. Bambagiotti Solicitor for the Appellant: Ms J. Yates Counsel for the Respondent: Mr M. Skinner Solicitor for the Respondent: Mr W. Annis-Brown Solicitor for the Attorney-General: Mr J. Heard Date of Hearing: 5 March 2002 Date of Judgment: 5 March 2002