STATE RAIL AUTHORITY OF NEW SOUTH WALES v PHILLIPS [2001] NSWCA 172

New South Wales Court of Appeal

CITATION : STATE RAIL AUTHORITY OF NEW SOUTH WALES v PHILLIPS [2001] NSWCA 172 FILE NUMBER(S) : CA 40834/00 HEARING DATE(S) : 6 June 2001 JUDGMENT DATE : 6 June 2001

PARTIES : STATE RAIL AUTHORITY OF NSW v RAYMOND FRANCIS PHILLIPS JUDGMENT OF : Mason P at 1

LOWER COURT JURISDICTION : Supreme Court LOWER COURT SC 921/87 FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

COUNSEL : Appellant: P Khandhar Respondent: M Whelan (Solicitor) SOLICITORS : Appellant: Sparke Helmore Respondent: Geoffrey Edwards & Co CATCHWORDS : Practice and procedure - hearing date fixed without reference to convenience of counsel - prior defaults in complying with Rules and directions - application to vacate fixture on basis of unavailability of counsel - relevant considerations - application refused DECISION : Notice of Motion dismissed. No order as to costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40834/00 MASON P

Wednesday 6 June 2001

STATE RAIL AUTHORITY OF NEW SOUTH WALES v Raymond Francis PHILLIPS

JUDGMENT

1 HIS HONOUR: This is an appeal as to damages only. The notice of appeal without appointment was filed on 24 October 2000. The notice of appeal with appointment was filed on 10 November 2000. Under the rules, this meant that the red book and the appellant's submissions were due to be filed by 22 December 2000 and the respondent's submissions were due to be filed by 19 January 2001. In fact, nothing had been done by the date of the first call-over which was 15 March 2001. On that day, the Registrar directed the red book to be filed by 12 April, the appellant was to file its submissions by 12 April and the respondent was to file his submissions by 10 May. 2 The red book was not in fact filed until 17 April, five days outside the extended time directed by the Registrar. The appellant's submissions were not filed as directed either. They were eventually filed on 30 April, that is four months after the date on which they were due under the Rules and two weeks after the extended date under which they were due in accordance with the Registrar's directions. 3 On 10 May the matter came again before the Registrar for a further directions call-over. The respondent's submissions had not been filed by that day as they should have been. The respondent was directed by the Registrar to file his submissions by 7 June and the matter was stood over to a further directions hearing on 17 May. 4 On 17 May the Registrar directed the balance of the appeal books to be filed by 7 June and the hearing was specially fixed for 14 June. 5 On 5 June the appellant obtained leave to serve short notice of a motion seeking to have the hearing date of 14 June vacated. The motion is supported by an affidavit of the appellant's solicitor and the ground advanced is that the hearing date fixed on 17 May, ie 14 June, was not one of the available dates specified by counsel. Senior Counsel involved has in fact confirmed his inability to appear on that date because he is overseas for the first two weeks of June. 6 As at 29 May 2001 the respondent's position as indicated by its solicitor was that his Senior Counsel was also unavailable on 14 June. That situation has now changed and the Senior Counsel of choice is available and the respondent's submissions have been filed. 7 I should indicate that even were it not for the opposition of the respondent I would have refused this application. 8 The pattern of non-compliance with the Rules and directions that I have recounted is regrettably common in the Court of Appeal. There is a climate of disregard for legal obligations which will have to cease and the Court is determined that the culture will change. 9 At the present time, there are approximately 445 appeals awaiting hearing in the Court of Appeal. In addition of course there are summonses for leave to appeal. It is true that every litigant is entitled to have his, her or its rights determined on a one to one basis and that the interests of litigants generally cannot overreach the proper interests of an individual litigant who has a right of appeal. But it is equally true that the rules are to be complied with. 10 It is also a sad fact that the convenience of counsel cannot invariably be taken into account.