Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Michael Wilson & Partners v Emmott [2024] NSWCA 269 Hearing dates: 15 November 2024 Date of orders: 15 November 2024 Decision date: 15 November 2024 Before: Ward P; Griffiths AJA Decision: 1. The summons seeking leave to appeal filed 31 October 2024 is dismissed. 2. The applicant's application for an extension of time to file the summons, as referred to in its outline of written submissions dated 7 November 2024, is also dismissed. 3. The applicant's notice of motion filed 7 November 2024 is dismissed, with no order as to costs. 4. The applicant pay the respondent's costs of the summons seeking leave to appeal filed 31 October 2024. Catchwords: APPEALS — leave to appeal — interlocutory orders setting substantive matter down for hearing — whether applicants have identified a principle of general application or a question of public importance or any substantial injustice — where leave to appeal denied Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58 Supreme Court Act 1970 (NSW), ss 46, 101 Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 36.17, 51.54 Cases Cited: Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Avery v Registrar of Births, Deaths and Marriages; Avery v State of NSW (Attorney-General's Department) (2010) 79 NSWLR 354; [2010] NSWCA 72 Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353; [2003] FCAFC 42 Emmott v Michael Wilson & Partners Ltd [2022] HCASL 142 Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 House v R (1936) 55 CLR 499 Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371 Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (atf Temujin International (trading) Trust & Temujin Services Limited v Emmott (No 5) [2024] NSWSC 1127 Michael Wilson & Partners Ltd v Emmott (2021) 396 ALR 497; [2021] NSWCA 315 Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218 Mohareb v Local Court of New South Wales [2024] NSWCA 235 Mohareb v Manly Local Court [2024] NSWCA 233 Nicholls v Michael Wilson & Partners Ltd (No 2) [2013] NSWCA 141 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Press v iSAM Securities (UK) Ltd [2024] NSWCA 260 Re the Will of FB Gilbert (1946) 46 SR (NSW) 318 Satchithanantham v National Australia Bank [2010] FCAFC 47 State Rail Authority of New South Wales v Phillips [2001] NSWCA 172 Texts Cited: Nil Category: Principal judgment Parties: Michael Wilson & Partners Limited (Applicant) John Forster Emmott (Respondent) Representation: Counsel: G Burton SC (Applicant) J Baird (Respondent) Solicitors: Michael Wilson & Partners, Limited (Applicant) Duggan Legal (Respondent) File Number(s): 2024/406800 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Date of Decision: 26 August 2024 Before: Ball J File Number(s): 2016/00034380 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT 1. The applicant seeks leave to appeal from an order made by Ball J on 26 August 2024 in which the substantive matter was set down for a hearing to commence next Monday, 18 November 2024, with a time estimate of 5 days. The order was made at the conclusion of a directions hearing conducted on 26 August 2024. 2. The matter had been listed for directions on 23 August 2024 and the matter was then stood over to 26 August 2024 for the purpose of fixing a hearing date. 3. On 5 September 2024, Stevenson J dismissed a notice of motion filed by the applicant on 4 September 2024 in which it sought to have the hearing date vacated (see Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (atf Temujin International (trading) Trust & Temujin Services Limited v Emmott (No 5) [2024] NSWSC 1127). 4. It appears from Stevenson J's reasons for judgment at [4] that his Honour had reviewed the transcript of the directions hearing before Ball J on 26 August 2024: The transcript of the directions hearing on 26 August 2024 reveals that, although his Honour was initially minded to fix the matter for two weeks commencing 21 July 2025, his Honour fixed the matter for hearing on the date I have mentioned because Mr Wilson, who appeared for the plaintiff, declined to give an undertaking not to enforce a bankruptcy notice issued in favour of the plaintiff against the defendant arising from a costs order made in the High Court of Australia. 1. Stevenson J then set out the following further passage from that transcript (at [5]): His Honour said: "Mr Wilson, you have got a choice. You can agree to a stay of the bankruptcy notice or you can face a hearing on 18 November. It is your choice … I am not going to permit this case to go off on the basis that you are able to bankrupt the defendant in circumstances where the issues in this case are relevant to the question of the bankruptcy." 1. Stevenson J also referred to the issue whether the applicant's counsel, Mr G Burton SC, was available during the week commencing 18 November 2024. He noted that Ball J was recorded in the transcript as saying that he had an email which said that Mr Burton SC was available between 18 and 25 November. Stevenson J said that it appeared that Ball J was "mistakenly referring to an email from the defendant's solicitors which spoke of the defendant's counsel's availability". Stevenson J added at [9] that this "temporary misapprehension" did not affect the outcome because, when Mr Michael E Wilson (the solicitor for the applicant who appeared at the directions hearing by telephone) said that he had not seen any such email and that he had been trying to obtain Mr Burton's available dates, Ball J was then recorded as saying that: "in that case, you're in no position to say your counsel's not available". 2. Stevenson J stated at [10] that it was on this basis (i.e., Mr Wilson being in no position to say whether his counsel was available or not), and on the basis of Mr Wilson's refusal to give an undertaking concerning the bankruptcy notice, that the matter was fixed for hearing on 18 November 2024. 3. Stevenson J therefore dismissed the applicant's notice of motion and added, at [12], that since the hearing date was over two months away, the applicant had adequate time to retain alternate counsel if Mr Burton SC was not available when the hearing commenced on 18 November 2024. Some background matters summarised 1. The proceedings have a remarkably long history dating back to at least 2006. That history is detailed in a chronology prepared by the applicant, which was updated on 8 November 2024. In brief, the chronology highlights the following relevant matters as described by the applicant: * Messrs Emmott (the respondent), Nicholls and Slater allegedly formed the Temujin Partnership from within the law firm Michael Wilson & Partners Limited (MWP). * In proceedings in the Supreme Court, the Court of Appeal and the High Court during the period 2006-2011, findings were made regarding the formation and existence of the Temujin Partnership, including findings that as a partner, Mr Emmott was the "backbone of a plot" and was also the "person who controlled and controls each and every step in Temujin's initial and ongoing activities". * On 31 May 2013, this Court published its judgment and orders in favour of MWP against seven defendants which required all of MWP's guarantees and moneys to be released and returned to MWP, plus damages and costs (see Nicholls v Michael Wilson & Partners Ltd (No 2) [2013] NSWCA 141). * In 2015-2016, MWP acquired by assignment from trustees in bankruptcy and liquidators all rights of Messrs Nicholls, Slater and associated companies and trusts against Mr Emmott as well as ownership of 67% of the Temujin Partnership. * On 2 February 2016, MWP commenced proceedings in the Equity Division of the Supreme Court relating to the Temujin Partnership and involving Inspection Disclosure, Inquiry Account and Proprietary Tracing (TPIDIAPT). The TPIDIAPT was injuncted in legal proceedings in England but the injunction was lifted by the Court of Appeal there on 31 January 2018, save in relation to contribution. This decision was upheld by the Supreme Court of the United Kingdom on 31 July 2018. * On 3 October 2018, the applicant filed and served an amended summons and commercial list statement in the TPIDIAPT proceeding. * On 8 March 2019, Ball J stayed the TPIDIAPT proceeding (Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218). * The stay order was lifted by this Court on 17 December 2021 (Michael Wilson & Partners Ltd v Emmott (2021) 396 ALR 497; [2021] NSWCA 315). * On 1 April 2022, MWP filed and served a further amended summons and commercial list statement in the TPIDIAPT proceeding. * On 8 September 2022, the High Court refused Mr Emmott's special leave application with costs (Emmott v Michael Wilson & Partners Ltd [2022] HCASL 142). * On 21 April 2023, the HCA certified the costs payable to MWP by Mr Emmott but he has refused to pay those costs. * On 10 November 2023, Ball J made an order requiring each party to seek leave before filing any further motions. There does not appear to be any reasons for judgment in relation to this order. * On 17 May 2024, MWP filed its further restated and amended summons and commercial list statement in the TPIDIAPT proceeding. * On 26 August 2024, MWP issued Mr Emmott with a bankruptcy notice regarding the unpaid High Court costs order, to which Mr Emmott has not responded. 1. As noted above, also on 26 August 2024, at the conclusion of a directions hearing, Ball J listed the TPIDIAPT proceeding for a five-day hearing commencing on 18 November 2024. 2. During the period 26 August - 27 August 2024 there were exchanges of correspondence with Ball J's associate concerning the correctness of Ball J's statement during the 26 August 2024 directions hearing that he had been provided with dates of Mr Burton SC's availability. 3. On 30 August 2024 (i.e., post the order made by Ball J on 26 August 2024), MWP served a Creditor's Petition on Mr Emmott, arising from his failure to comply with the bankruptcy notice dated 26 August 2024. The Creditor's Petition was listed in the Federal Court of Australia on 12 November 2024. On that day, Judicial Registrar Birchall adjourned the Creditor's Petition for further case management on 18 February 2025 (Exhibit D). 4. On 4 September 2024, MWP filed a draft notice of motion, together with supporting evidence and submissions, seeking to have the 18 November 2024 hearing date vacated. 5. As noted above, on 5 September 2024, after determining the matter on the papers, Stevenson J refused the applicant leave to file its notice of motion seeking to have the hearing vacated and, in any event, dismissed the motion. 6. On 5 September 2024, the applicant emailed Stevenson J's associate and requested a copy of the transcript of the directions hearing before Ball J on 26 August 2024. Evidently, the applicant had ordered a copy of the transcript but as at the date of Mr Wilson's 29th affidavit dated 4 September 2024, it was still awaited. The Court has reviewed that transcript, it forming part of the Court File. Copies of the transcript were made available to counsel for both parties during the course of the hearing before us (MFI 1). 7. On 23 September 2024, the applicant tried unsuccessfully to file electronically a notice of intention to appeal from Ball J's orders. The applicant contends that it was unable to upload the document due to difficulties in connecting with the Supreme Court's browsers. 8. On the following day, 24 September 2024 (which is one day after the expiry of the period for filing a notice of intention to appeal), the applicant emailed the Supreme Court Registry and requested that it file a hard copy of the notice of intention to appeal. 9. The Registry refused to file the notice of intention to appeal on the basis it was out of time. 10. On 31 October 2024, the applicant filed its summons seeking leave to appeal. 11. On 7 November 2024, the applicant filed in this Court a notice of motion seeking an expedited listing and hearing of its summons, and one affidavit in support. The motion was listed for hearing on 18 November 2024 at 9am. 12. On 10 November 2024, the applicant provided to Hammerschlag CJ in Eq (who is the trial judge for the substantive hearing) a notice of motion in draft, together with a supporting affidavit sworn 10 November 2024 by Mr Wilson, seeking to vacate the trial scheduled to commence next Monday. We understand that, on 13 November 2024, his Honour stood over the applicant's motion to be heard by him at the commencement of the trial next Monday. 13. On 11 November 2024, the summons seeking leave to appeal filed 31 October 2024 was listed to be heard by us today at 10:15am. In effect, this listing overtook the listing of the hearing of the motion filed 7 November 2024 as referred to at [20] above. Accordingly, at the hearing today that notice of motion was dismissed, without any order as to costs. 14. In support of the summons seeking leave to appeal, the applicant ultimately relied upon four affidavits sworn by its solicitor, Mr Wilson. The four affidavits are headed the "28th affidavit of M E Wilson of 31 August 2024", the "29th affidavit of M E Wilson of 4 September 2024", the "30th affidavit of M E Wilson of 9 October 2024" and the "1st affidavit of M E Wilson", which according to the applicant's written submissions at [4] is dated 5 November 2024, but in fact is dated 6 November 2024 and was filed on 7 November 2024. 15. We have not taken into account parts of these affidavits which were not read. In particular, we have paid no regard to some parts of the affidavits which could fairly be described scandalous in terms of criticisms of Ball J's actions. Those criticisms should never have been made by a legal practitioner in the manner in which they were expressed. The applicant's submissions summarised 1. In brief, the applicant's written and oral submissions in support of it obtaining leave to appeal may be summarised as follows. 2. First, the applicant would suffer severe prejudice if the final hearing of this complex, long and involved proceeding went ahead as currently scheduled. The prejudice was said to be the unavailability of expert and other witnesses, the need for further steps to be taken in obtaining evidence on subpoenae and notices to produce, the impact of an "already-committed preparation and hearing date", the unavailability of the applicant's only instructing solicitor (Mr Wilson) who is said to have client commitments in Canada, Kazakhstan and England, and the unavailability of Mr Burton SC for three of the five days of the hearing. 3. Secondly, it was wrong of Ball J to "require" the applicant to give an undertaking regarding enforcement of the bankruptcy notice. In any event, the Creditor's Bankruptcy Petition was listed for hearing on 12 November 2024. As noted above, that matter has now been stood over to February next year. 4. Thirdly, the primary judge erred in setting a final hearing date without balancing the justice between the parties (citing Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 at [37]-[41]). The applicant submits that a correct balancing of justice between the parties would have the hearing dates reset from at least March 2025 onwards, once availability of witnesses and legal representatives is ascertained, and for a period much greater than 5 days. 5. Fourthly, the applicant's failure to file the notice of intention to appeal within time was beyond its control because of technical difficulties with connecting with the Court's browsers. 6. Fifthly, while acknowledging that Ball J's decision is procedural, the applicant emphasised that it affected its substantive rights and severely prejudiced its preparation of its case, matters to which it says Ball J gave insufficient weight. 7. Sixthly, it claimed that the delay in the proceeding during the period 2006-2014 and February 2016 through to 8 September 2022 was largely the respondent's responsibility. 8. Seventhly, the primary judge's exercise of the discretion to set an early hearing date miscarried in circumstances where, although the bankruptcy notice had been served, the respondent chose to take no step. And, even though the hearing date of the Creditor's Bankruptcy Petition was not known on 26 August 2024, the proceedings were listed on that day for a final hearing. In circumstances where the expressed basis for setting the earlier hearing dates was absent, this was said to involve a material error of fact and added to the applicant's substantive injustice. Consideration and determination (a) Relevant legal principles summarised 1. The applicant does not dispute that it requires leave to appeal under s 101(2)(e) of the Supreme Court Act 1970 (NSW) because the orders made by Ball J on 26 August 2024 are interlocutory. 2. Recently, in Press v iSAM Securities (UK) Ltd [2024] NSWCA 260, we set out some relevant principles guiding the discretion to grant leave identified by Kirk and McHugh JJ in Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [25]-[31]. Those principles are as follows: Section 101(2) of the Supreme Court Act refers to this Court granting leave to a party to appeal but does not specify any criteria by which the discretion is to be exercised. In the usual way of the common law method, statements of principle have evolved to guide the exercise of discretion. This Court has stated on numerous cases that it is usually or generally only appropriate to grant leave to appeal concerning matters that involve issues of principle, questions of general public importance or a reasonably clear injustice going beyond something that is merely arguable: see eg Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl Ltd) [1995] NSWCA 69 per Kirby P; The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268 at [13]; see more recently eg Shapkin v The University of Sydney [2024] NSWCA 156 at [39]. It is commonly sufficient to refer to those factors in deciding whether to grant leave to appeal. But as is implicit in the use of "usually" and "generally", whilst those factors are important they are neither exhaustive nor necessarily determinative. Thus this Court has also said, for example, that "leave should be granted only where there are substantial reasons to allow an appellate review … such as where there is an error of principle which, if uncorrected, will result in substantial injustice": Collier v Lancer (No 2) [2013] NSWCA 186 at [7] (citations omitted); see also Rodi v Gelonesi [2012] NSWCA 424 at [24]; DEF v Trappett [2017] NSWCA 163 at [25]. There are no "rigid and exhaustive criteria" as the "circumstances of different cases are infinitely various": Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177. The ultimate issue is the interests of justice, taking into account both the circumstances of the particular case and broader interests in resolving matters of public importance and clarifying the law. A range of considerations may be relevant. For example, it has often been said that particular caution is called for in granting leave to appeal a decision pertaining to practice and procedure: eg Adam P Brown at 177; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3]. 1. These principles draw in part on well-known authorities such as in Re the Will of FB Gilbert (1946) 46 SR (NSW) 318 at 323 and Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39. 2. As Basten JA pointed out in Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371 at [9], relevant authorities provide a degree of guidance, but most cases can be decided by reference to current legislation and the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). His Honour added at [9]: … Thus, most interlocutory appeals are now subject to the filter of a leave requirement: see eg Supreme Court Act 1970 (NSW), s 101(2)(e). A decision as to whether to grant or refuse leave in a particular case must have regard to the guiding principles set out in Pt 6 of the Civil Procedure Act, as discussed in Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[39]. Some considerations are specific to the circumstances of the particular case; some operate generally in relation to the control of the court's workload and the impact of a particular practice or procedure on other litigants. Again echoing modern concerns, Jordan CJ in Will of Gilbert abjured an approach which would "in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a court of appeal." 1. Consistently with Basten JA's observations, in Hans Pet Allsop ACJ emphasised the importance of ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW) in making discretionary case management orders. Those provisions are well known and need not be set out here. 2. A decision to list a matter for hearing is not only a matter of practice and procedure, but it is also one which involves the exercise of the Court's discretion. As Bell P stated in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5], discretionary decisions, whether in the context of substantive or procedural relief, engage "the strictures against over-ready appellate interference and the correlative need for "added restraint" associated with House v R (1936) 55 CLR 499". 3. Having regard to the emphasis which the applicant has placed on the alleged failure of Ball J to take into account the non-availability of the applicant's senior counsel for a five-day hearing on 18 November 2024, it is also apt to have regard to the observations of Mason P in State Rail Authority of New South Wales v Phillips [2001] NSWCA 172. After noting at [10] that it was "a sad fact that the convenience of counsel cannot invariably be taken into account" in listing a matter for hearing, his Honour then added at [12]: There obviously are cases in which the trial was so lengthy and complex and the appeal hearing will be so lengthy and complex that it is in everybody's interests that there be no loss of counsel of choice, particularly if that counsel appeared at the trial. I think it is equally clear that there are classes of appeals where those considerations do not apply, although the client's choice of counsel is not a matter to be disregarded by any stretch of the imagination. If however the Court has available hearing dates at a time when there will be adequate opportunity for the matter to be brought to a state of readiness, then the profession must understand that the Court may well fix the matter for hearing. Experience has shown that quite often dates which are not within the range given by counsel at the call-over turn out to be acceptable to counsel. Experience also shows that hearings are set down on the basis of counsel X's availability and then counsel Y comes in for all sorts of good and proper reasons. It is part of the reality of life. (b) Disposition 1. Having regard to the guiding principles outlined above, we are not persuaded that the proposed appeal raises any issue of principle or question of public importance. Rather, the proposed appeal relates to the listing of a proceeding for final hearing which is a matter of practice or procedure, and the need for appellate restraint is well-established. 2. Nor are we satisfied that the applicant has established any substantive injustice based on any error which goes beyond something that is merely arguable. As Stevenson J pointed out, even if Ball J was wrong in stating that he had been provided with Mr Burton SC's available dates, the issue of the availability of the applicant's senior counsel was not determinative of Ball J's decision to set the matter down for hearing on 18 November 2024. 3. The alternative (and sufficient) basis for that decision was Mr Wilson's refusal to give an undertaking not to enforce the bankruptcy notice. It is evident from the transcript on 26 August 2024 that Ball J accepted the respondent's submission that the respondent already had some costs orders in its favour in the substantive proceedings which it may not be able to enforce until the proceedings are complete. His Honour proceeded on the basis that the respondent was entitled to have the proceedings heard and determined because they may provide a set-off to the costs certified in the High Court which are the subject of the bankruptcy notice. 4. We do not consider that the applicant has sufficiently strong prospects of establishing that it was erroneous of Ball J to give the applicant the option of proffering an undertaking not to enforce the bankruptcy notice in circumstances where the question of bankruptcy was affected by some of the issues in the substantive proceedings. Indeed, the applicant's evident intention to have the respondent bankrupted is reflected in the fact that, following Ball J's order dated 26 August 2024, it has issued and pursued a Creditor's Petition. 5. In these circumstances, we do not accept the applicant's submission that there is no basis for the respondent's claims of prejudice or that any such prejudice is significantly outweighed by the applicant's state of unreadiness to proceed with the hearing. 6. Nor are we satisfied that the applicant has established any error of the kind in House v R or demonstrated that Ball J's decision is inconsistent with the statutory directives in ss 56, 57 and 58 of the Civil Procedure Act. 7. Having regard to the lengthy history of these proceedings, it was not unreasonable or unjust for Ball J to proceed as he did and to have the matter set down for a final hearing when he did, in circumstances where the applicant had commenced the proceedings as far back as 2 February 2016. 8. The transcript of the hearing on 26 August 2024 makes clear that Ball J was concerned about delay in the proceeding coming on for a final hearing. Mr Baird of counsel, who appeared for the respondent in that directions hearing, referred to the fact that the directions hearing on 26 August 2024 was the third occasion on which the respondent had sought a hearing date. Moreover, at the conclusion of the directions hearing, Ball J said as follows: HIS HONOUR: Very well, I've heard enough. This matter is ready for hearing. The matter is in the Commercial List and the parties ought normally expect that the matters in this list will be heard promptly. This matter has already taken too long to come to a hearing. In those circumstances, I set the matter down for hearing commencing on 18 November. I will make the usual order for hearing. I'll adjourn. 1. As for the applicant's complaints regarding the unavailability of Mr Burton SC for part of the five day hearing, Mr Wilson and the two experts, we acknowledge that, in principle, this may cause some inconvenience. But as Stevenson J pointed out in his judgment published on 5 September 2024, the applicant had more than two and a half months to engage replacement counsel. In any event, Mason P's observations in Phillips regarding the unavailability of counsel (and we would add an instructing solicitor) are apposite. 2. As to Mr Wilson's personal unavailability to attend at the hearing commencing 18 November 2024 because of other professional commitments, we accept that he has had a prominent involvement in the proceedings to date. In his thirtieth affidavit, Mr Wilson describes his professional commitments in the period 11 October 2024 – 4 December 2024. We note that he was involved in the Federal Court hearing on 12 November 2024, but it was adjourned to next year. We also note that he was involved in a hearing in the ACT Court of Appeal yesterday. He deposes that he has "longstanding client commitments" in the week of 18 – 22 November 2024 and a hearing in Vancouver on 2 December 2024. 3. During the course of the hearing today, Mr Burton SC (who appeared for the applicant) stated that Mr Wilson would be "running" the case next week. Although Mr Burton SC was not aware of the details of Mr Wilson's travel arrangements, he understood that Mr Wilson would be present in Court next Monday. It appears, therefore, that Mr Wilson has been able to rearrange the "longstanding client commitments" referred to in his affidavit. 4. Turning then to the inability of the applicant's two experts to travel to Australia to give evidence, that is hardly determinative. It is open to the applicant to apply to have their evidence heard by AVL. Whether or not that procedure is permitted is a matter, of course, for Hammerschlag CJ in Eq, but it is notable that the respondent does not propose to call any expert witnesses in its case. Accordingly, there will be no necessity for a conclave of opposing experts. 5. Furthermore, Mr Baird of counsel (who appeared for the respondent) tendered an email dated 10 September 2024 to Mr Wilson in which the respondent proposed that, to the extent that the applicant's two experts were required for cross-examination, this could be conducted by AVL, subject to the Court's approval. 6. As to the applicant's desire to obtain further (unparticularised) evidence by way of subpoenae and notices to produce, it has had ample time since it commenced the proceedings in 2016 to attend to such matters. In addition, the applicant has known that the matter was to be listed for hearing since at least 21 April 2023, when Ball J made previous orders, that the plaintiff was required to file and serve any further affidavits by 3 July 2023 and any affidavits in reply by 21 August 2023, and that the proceedings were relisted for further directions at that time on 1 September 2023, with a view to setting a hearing date (Exhibit 1). 7. As to the applicant's complaint that 5 days will be inadequate for a hearing, we discern no error in Ball J's acceptance of the respondent's estimate of the length of the hearing. All the more so when it is evident from the transcript of the directions hearing on 26 August 2024 that the applicant's former senior counsel (Mr Bennett KC) had previously submitted an estimate of four days. 8. The reasons given above provide a sufficient basis to dismiss the summons seeking leave to appeal. There are, however, two further matters. 9. The first is that in neither its summons, its outline of written submissions or its notice of motion filed 7 November 2024, did the applicant purport to challenge Stevenson J's decision dated 5 September 2024. If it had, we would have dismissed that challenge on similar grounds to that applying to Ball J's decision. 10. The second matter relates to a second potential alternative basis for dismissing the applicant's summons seeking leave to appeal. It is unnecessary to express a final view on the matter given the time constraints and the fact that we were not sufficiently assisted by the parties' submissions on the question (which was raised by the Court itself during the course of the hearing), but there is a strong argument that Ball J's decision to list the matter for hearing is an administrative function of the Court and is not amenable to challenge under UCPR rr 36.15, 36.16 or 36.17 because it is not a "judgment or order". Nor arguably is the decision amenable to "discharge or variation" under s 46(4) of the Supreme Court Act. 11. A similar view was recently expressed by Gleeson JA in Mohareb v Manly Local Court [2024] NSWCA 233, where his Honour addressed a challenge to an order by the Court whether or not to list an appeal concurrently with an application for leave to appeal under r 51.54 of the UCPR. His Honour stated at [9] that a: …decision of the President or any other a single judge of appeal under UCPR, r 51.14 is an administrative direction. Such a decision is not amenable to challenge under UCPR, r 36.15, 36.16 or 36.17 because it is not a "judgment or order". Nor is the decision amenable to "discharge or variation" under s 46(4) of the Supreme Court Act. … 1. The proposition that the setting of a listing date by the Court is an administrative function is also supported by observations of Campbell JA (Tobias and Young JJA agreeing) in Avery v Registrar of Births, Deaths and Marriages; Avery v State of NSW (Attorney-General's Department) (2010) 79 NSWLR 354; [2010] NSWCA 72 at [160] where his Honour said that it is "the Court's prerogative to decide how its business will be arranged, and it can give directions about the arrangement of its business without anyone specifically applying for those directions". 2. We also note that in Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353; [2003] FCAFC 42, the Full Court of the Federal Court (Lee, Whitlam and Jacobson JJ) refused to grant leave to appeal against a direction of a judge to a registrar not to accept a document for filing, as such a decision was administrative in character, not judicial. The Full Court observed that the judge's direction was "not a determination of right made by a judge after hearing or considering argument or submissions upon an application to the court seeking the exercise of judicial power" (at [16]). 3. It is unnecessary, however, for us to express a final view on these matters. (c) Conclusion 1. For these reasons, the summons seeking leave to appeal filed 31 October 2024 will be dismissed. Accordingly, the applicant's application for an extension of time to file a summons, which is referred to in its outline of written submissions (but in neither the summons or the notice of motion filed on 7 November 2024), will also be refused. 2. As noted above, the applicant's notice of motion filed 7 November 2024 will also be dismissed, with no order as to costs. 3. The applicant must pay the respondent's costs of the summons seeking leave to appeal filed on 31 October 2024. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2024