ROGERS v WENTWORTH [1988] NSWCA 130

ROGERS v WENTWORTH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, SAMUELS and MAHONEY JJA 17 February 1988 [1988] NSWCA 130

application to vacate hearing date — applicant not notified by Registrar of hearing date — found that applicant not prejudiced

Hope JA The court has before it an application to vacate the hearing date fixed for proceedings brought by the claimant to set aside orders made by this court on 6 May 1987.

The proceedings were instituted some while ago and have been mentioned from time to time before the court. On 4 December 1987 the matter was stood over to a date to be fixed by the Registrar. The record of the court as to what was done on that day is in these terms:-

"Both matters stood over to a date to be fixed by the Registrar but to proceed to hearing of the contempt matters and the contempt matters to be stood over to a subsequent date for hearing by the Registrar."

The Registrar apparently fixed the date for the hearing of the application to set aside the orders for tomorrow, 18 February, but according to the applicant did not notify him or his solicitors. The opponent, Ms Wentworth, was notified and has prepared the case for hearing accordingly.

The claimant has filed all his affidavit evidence in relation to the matter as has the opponent. On one view of the matter, the issues raised in the proceedings could be disposed of by reference to a very few number of documents. It is possible that on another view of the matter the proceedings might involve the giving of oral evidence and reference to that evidence.

The claimant submits that he is prejudiced particularly because of what he submits is the complexity of the matter or some aspects of the matter; the fact that Mr Hutley of counsel has been acting in the matter for some time and is familiar with these matters but no other counsel has as yet been briefed in the matter; and that the claimant' and his legal advisers only received notice that the date for the hearing of the application had been fixed for IS February either on Monday or Tuesday of this week, that is, on IS or 16 February.