Outdoor Education NSW Pty Ltd v State of New South Wales [2021] NSWSC 723

Supreme Court New South Wales

Medium Neutral Citation: Outdoor Education NSW Pty Ltd v State of New South Wales [2021] NSWSC 723 Hearing dates: 17 June 2021 Decision date: 17 June 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) The plaintiff to pay the defendant's costs thrown away by the vacation of the hearing date on 22 June 2021, such costs to be paid on an indemnity basis. (2) Stand the matter over to 9.15am on Tuesday, 6 July 2021. Catchwords: CIVIL PROCEDURE — Hearings — Matter not ready for hearing — Plaintiffs' default in complying with directions — Hearing date vacated Legislation Cited: Civil Procedure Act 2005 (NSW), Part 6 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 12.7 Category: Procedural rulings Parties: Outdoor Education NSW Pty Limited (First Plaintiff) Camps NSW Pty Limited (Second Plaintiff) South Sydney Bush Camp Pty Limited (Third Plaintiff) State of New South Wales (First Defendant) Marnie O'Brien (Second Defendant) Representation: Counsel: D Robertson (Plaintiffs) O Jones (First Defendant)

Solicitors: Turnbull Hill Lawyers (Plaintiffs) Minter Ellison (First Defendant) File Number(s): 2021/115782

Judgment (EX TEMPORE) 1. This matter was listed for mention before me on 16 June 2021 on the first defendant's application, having regard to the plaintiffs' default in complying with the directions I made on 14 May 2021. Of present relevance, I directed the plaintiffs to file and serve any evidence in reply by 1 June 2021. The plaintiffs did so by 10 June 2021. However, of more significance, on that day, I also directed the plaintiffs to file and serve written submissions and any objections to the first defendant's evidence on or before 4 June 2021. Notwithstanding several promptings by the first defendant, the plaintiffs did not comply with that direction and have still not filed and served written submissions, nor did they provide any explanation to the first defendant or to the Court as to why they have failed to do so. 2. When that matter came before me yesterday, Mr Robertson, who appeared on behalf of the plaintiffs, sought that the hearing of the matter, which was listed on 22 June 2021, be adjourned. He said that the matter could not be ready for hearing on that day and acknowledged that the plaintiffs had not filed and served its submissions within the time provided for by my directions. Mr Jones, who appeared for the first defendant, also submitted that the hearing date should be vacated. He said that the directions I made allowed for the first defendant to have a full week from the time of receipt of the plaintiffs' written submissions and that it would be unfair to require the first defendant to file submissions within a shorter time. 3. In matters involving administrative review seeking relief under s 69 of the Supreme Court Act 1970 (NSW), it is usually the case that the basis for the relief is set out in detail in the summons which is filed. In those circumstances, although submissions are of assistance to the Court and to the parties, they are not crucial in ascertaining the nature of the relief claimed and the basis for the allegation that there is either a jurisdictional error or an error of law on the face of the record. 4. However, when one has regard to the summons in this case, it is not clear that this Court would have jurisdiction under s 69 in any event. I say this because the decision made by the first defendant does not appear to have been made under any statutory provision. The summons does not identify any statutory provision pursuant to which the first defendant decided that school children were not to attend camps run by the plaintiffs until further notice. In these circumstances, the written submissions would be particularly important to inform both the first defendant and the Court of the basis of the plaintiffs' invocation of this Court's jurisdiction under s 69 of the Supreme Court Act. 5. Having regard to the position of the parties regarding the hearing date on 22 June next week, I was persuaded that the only appropriate course was to vacate that hearing date. The plaintiffs would plainly not be ready for hearing and the first defendant ought not be put in the position of anticipating the basis on which the plaintiffs would put their claim. Whilst the first defendant has obligations as a model litigant, those obligations certainly do not extend to making a case for the plaintiffs. 6. Mr Jones sought an order that the plaintiffs pay the costs thrown away by the adjournment since it was plainly the plaintiffs' default which led to the matter being adjourned. Mr Robertson sought 24 hours to obtain instructions from his client as to this matter and to file an affidavit with a view to there being an explanation of the plaintiffs' position. An affidavit of Rani Devi Gandha of 16 June 2021 was filed yesterday afternoon. 7. In essence, the deponent says that correspondence has ensued between the plaintiffs and the first defendant with a view to ascertaining whether the first defendant will revoke the safety alert or notify the plaintiffs and the State schools that their pupils can attend camps run by the plaintiffs. It does not contain any explanation for the plaintiffs' continued default with the directions I made on 14 May 2021. 8. The defaults of the plaintiffs are particularly egregious in circumstances where, on 14 May 2021, Mr Hale SC, who appeared for the plaintiffs, sought the utmost expedition from this Court in allocating a hearing date. This request was accommodated, and allowance made for Mr Hale's availability so that he could represent the plaintiffs on 22 June 2021. 9. An order for indemnity costs is generally made by the Court to signify that the defaulting party has been wholly responsible for the waste of costs by the other party, and that there is inadequate or no explanation for that defaulting conduct. I regard the present as such a case. By putting the Court and the first defendant in a position where the proceedings cannot be heard on 22 June 2021, the plaintiffs have caused the first defendant to waste costs without any explanation having been given. 10. In deciding to make an order for indemnity costs thrown away by reason of the adjournment, I have had regard to the matters in part 6 of the Civil Procedure Act 2005 (NSW), including the interests of justice and the administration of justice. 11. I will move now to the next issue between the parties: the further conduct of the proceedings. 12. Mr Robertson has sought that the matter be stood over for a further two or three weeks during which time the plaintiffs will decide whether to prosecute the present action (which is based on a decision made by the first defendant on 31 March 2021) or whether to amend the summons if any further decision is made by the first defendant. Mr Robertson did not explain to my satisfaction why the first defendant's future conduct necessarily affects the relief sought in the summons, since the relief sought in the summons, as I have said, relates to a decision of 31 March 2021. 13. Mr Jones submitted that I ought make directions today requiring the plaintiffs to file their submissions within a particular time frame, perhaps within seven days, and then make an order under Uniform Civil Procedure Rules 2005 (NSW), r 12.7, that if the plaintiffs fail to comply with the order for submissions, they would have to show cause why the matter ought not be dismissed for want of due dispatch. 14. Whilst I accept that the orders proposed by Mr Jones would tend to have the effect of bringing the matter to a head more quickly, it would appear to me that justice demands that the plaintiffs have a little time to consider the prudence of maintaining proceedings which may have little or no utility, and in respect of which it may be that, when the matter is closely examined, the Court may have no jurisdiction. I say that in very tentative terms because of course I have not heard the parties on that matter. 15. For the reasons I have given, I make the following orders: 1. The plaintiff to pay the defendant's costs thrown away by the vacation of the hearing date on 22 June 2021, such costs to be paid on an indemnity basis. 2. Stand the matter over to 9.15am on Tuesday, 6 July 2021.