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. 11 The Court of Appeal has reached a stage where it no longer has a holding list. Matters are capable of being set down for hearing at the first return date. That is a return date that is fixed having regard to the requirements under the Rules with a couple of weeks of leeway. Unfortunately, as often happens and has certainly happened here, the first return date comes and goes without any prior compliance and there are further directions given which in turn are not complied with, which leads to further directions hearings and further costs which presumably the lawyers will pass on to the client. 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. 13 In a situation where there has been significant default and consequential delay, then it is in my view legitimate for the Court to take that matter into account in fixing a date so as to ensure that the matter does not continue to limp on. 14 In the present case, I am satisfied that the nature of the matter is such that no injustice would be done to the appellant by maintaining the hearing date. Alternative counsel will have the immense advantage of the submissions that have been prepared. I also take into account the fact that this application was made very belatedly. 15 It is to be noted that the existing directions of the Registrar require the balance of the appeal books to be filed by 7 June. That is this Thursday. I would not want the appellant to be under any misapprehension about the seriousness of that date and the essentiality that there be compliance with that direction. 16 The notice of motion is dismissed with costs. 17 WHELAN: Your Honour, could I be heard on the question of costs? We would not seek costs on the motion. It really only was this morning that my instructions changed about the availability of my Senior Counsel and I wouldn't want to be thought to be trying to get an unfair advantage over the appellant. So we'd be asking no order as to costs on the motion. 18 HIS HONOUR: Does that mean that the cost of your attendance today will be passed on to your client? 19 WHELAN: No, it does not, your Honour. 20 HIS HONOUR: The notice of motion is dismissed and I make no order as to costs. ************ 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.