Central Coast Animal Care Facility Incorporated v Wyatt [2022] NSWSC 1373

Supreme Court New South Wales

Medium Neutral Citation: Central Coast Animal Care Facility Incorporated v Wyatt [2022] NSWSC 1373 Hearing dates: 7 October 2022 Date of orders: 7 October 2022 Decision date: 12 October 2022 Jurisdiction: Equity - Applications List Before: Meek J Decision: Refuse to adjourn today's hearing. Notice of motion listed for hearing dismissed with costs. Catchwords: JUDGMENTS AND ORDERS — Belated application to set aside consent orders filed over 10 months after consent orders made in duty list — Delay in application being eventually listed for hearing following various case management listings — Application listed for hearing 22 months after consent orders made — on afternoon prior to listing applicant corresponds by email to chambers of Judge foreshadowing an adjournment of the application on assertion of physical and various mental health grounds including COVID 19, anxiety and stress — Respondent strenuously opposes adjournment — listing maintained but AVL link provided to applicant — Applicant provides by email further materials in late afternoon including materials not copied to respondent — Applicant fails on following morning to appear by AVL and provides no contact to the Court — Respondent requests dismissal of application for adjournment and dismissal of application to set aside consent orders — Applicant's applications dismissed PRACTICE AND PROCEDURE — Email communications with Judge's chambers — Discussion of appropriate procedures — A party cannot properly expect a judge to consider privately materials emailed to a judge's chambers on a contested application afortiori where the responding party has not been included in the communication allegedly because material is "highly confidential" CIVIL PROCEDURE — Hearings — Adjournment — Applicable principles — Medical grounds asserted being physical and various mental illness including COVID 19, anxiety and stress — Quality of evidence to justify adjournment CIVIL PROCEDURE — Principles regarding interlocutory applications — Consideration of source of rules and procedure governing interlocutory applications — Significance of 'moving'/'proceeding' on a notice of motion — Consideration of source of power to hear and determine application in absence of applicant moving application COSTS — Appropriate order where applicant fails to appear on determination of applications Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth), s 42A Civil Procedure Act 2005 (NSW), ss 3, 14, 56, 57, 58, 61, 66, 70, 90, Div 2 Pt 6 Evidence Act 1995 (NSW), s 136 Uniform Civil Procedure Rules 2005 (NSW), rr 1.2, 18.1, 18.2, 18.3, 18.4, 18.5, 18.6, 18.7, 18.8, 18.9, 29.7, 36.1, 42.1 Supreme Court Rules 1970 (NSW) Cases Cited: Ainsworth v Redd (1990) 19 NSWLR 78 ANZ v Mio Amico Pty Ltd [2013] NSWSC 716 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80 Bauskis v Liew [2013] NSWCA 297 Berry v The Exchange Trading Co (1875) 1 QBD 77 BMW Australia Finance Limited v Nguyen [2019] NSWSC 1223 Connam Pty Ltd as trustee for Christodoulou Family Trust v Lazarou [2019] NSWSC 1268 Davis v Turning Properties Pty Ltd [2005] NSWSC 742 DPP v Alexander (1993) 33 NSWLR 482 Hamod v New South Wales [2011] NSWCA 375 In the matter of Black Tie Holdings Pty Ltd (No 2) [2022] NSWSC 856 Magjarraj v Asteron Life Limited [2010] NSWCA 207 Magjarraj v Asteron Life Limited [2009] NSWSC 1433 O'Keefe v Integral Corporate Property Pty Ltd [2022] NSWSC 839 Phillips v Walsh (1990) 20 NSWLR 206 Samootin v Shea [2003] NSWSC 171 Sebie v Pham [2018] NSWCA 332 Short v Short [1960] 1 WLR 833 Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971 Uy v Ng [2021] NSWSC 429 Watson v Watson (1968) 70 SR (NSW) 203 Wendo v The Queen (1963) 109 CLR 559; [1963] HCA 19 Texts Cited: A D Lang, Horsley's Meetings: Procedure, Law and Practice (7th ed, 2015, LexisNexis) Court Forms Precedents & Pleadings (NSW) (LexisNexis) Category: Procedural rulings Parties: Central Coast Animal Care Facility Incorporated (Plaintiff / Respondent to Motion) Janelle Marie Wyatt (First Defendant / Applicant on motion) Troy Dean Wyatt (Second Defendant) Representation: Counsel: T Maltz (Plaintiff) No appearance (First Defendant) Submitting appearance (Second Defendant) Solicitors: Australian Lawyers and Advocates Pty Ltd (Plaintiff) File Number(s): 2020/343464