Vaughan v Dawson [2005] NSWSC 33

New South Wales Supreme Court

CITATION : Vaughan v Dawson [2005] NSWSC 33

HEARING DATE(S) : 4 February 2005

JUDGMENT DATE : 4 February 2005

JURISDICTION : Equity

JUDGMENT OF : Campbell J

DECISION : Notice of Motion seeking expedition dismissed

CATCHWORDS : PROCEDURE - Supreme Court procedure - Equity Division Expedition List - need for Notice of Motion and supporting affidavit seeking expedition - requirements of affidavit seeking expedition - practical consideration affecting operation of Expedition List

Supreme Court Act 1970 LEGISLATION CITED : Evidence Act 1995

CASES CITED : Greetings Oxford Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33

Graham David Vaughan - First Plaintiff Christine Nash - Second Plaintiff Rhonda Dawson - First Defendant PARTIES : Wayne Dawson - Second Defendant Illana Lampert - Third Defendant Trevor Solomons - Fourth Defendant Irena Nebenzhal - Fifth Defendant

FILE NUMBER(S) : SC 1002/05

S Velik, solicitor - Plaintiffs COUNSEL : P Carlisle, solicitor - Defendants

Velik Solicitors - Plaintiffs SOLICITORS : Steingold Abel Lawyers - Defendants

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST

CAMPBELL J

FRIDAY 4 FEBRUARY 2005

1002/05 GRAHAM DAVID VAUGHAN & ANOR v RHONDA DAWSON & ORS JUDGMENT – Ex Tempore

1 HIS HONOUR: This is a matter in which removal is sought of two caveats. The caveats are over some land at Balmain in the development of which the plaintiffs are involved. 2 The plaintiffs filed a notice of motion seeking expedition on 4 January 2005, returnable today. That notice of motion stated that the orders were sought upon the basis of two specific affidavits. Those affidavits are affidavits which were sworn for the purpose of the principal proceedings. They are the only affidavits filed by the plaintiffs so far, and seem to tell the whole story of the plaintiffs' involvement in the development. One of the affidavits refers repeatedly to documents contained in a bundle of documents. The substance of the affidavit is not fully comprehensible without access to that bundle of documents. Being an exhibit, of course, that bundle of documents was not filed. 3 Today, the applicants for expedition sought an order that they be granted leave to file a further affidavit, within a short period of time. The legal representative for the respondents to the application for expedition, sought to have it stood over to enable some settlement discussions to take place, and tendered some documents which he contends raise a case for expedition not being appropriate. The legal representative for the applicant tells me, from the Bar table that there are answers to the matters on which the respondent relies. 4 The application for expedition has come before the Court in a condition where the Court is simply not able to deal with it. 5 It is appropriate, as there have been numerous departures from the proper procedure for the running of the Expedition List in several cases in today's list, to re-state some matters concerning Expedition List procedure. 6 Practice Note 43, issued in 1987, is the only statement made by the Court as an institution, of the manner in which the Expedition List will operate in the Equity Division. That Practice Note remains operative, but because it is in general terms it does not state all matters that are relevant to the practical operation of the list. 7 Cases of any length can be expedited, if appropriate. However the practicalities of finding available days in the Court's calendar will sometimes mean that it is easier to obtain an early expedited hearing for a shorter case than for a longer one. Depending on the commitments of the Expedition Judges, if a case will take longer than 5 days it might not, and if it will take longer than 10 days it probably will not, be able to be heard by an Expedition Judge. For such a case, however, if the Expedition Judge is persuaded that the case deserves an early hearing, it may be possible for the Expedition Judge to make arrangements with the Chief Judge for a special fixture. 8 In Greetings Oxford Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at 42- 43 Young J said: "…when considering whether to expedite proceedings in this Division there are at least six factors which are taken into account. These are: (1) Is this the appropriate Court for the litigation, in particular: (a) does the litigation fall into the work normally done by this Court; and (b) is there a sufficient nexus with New South Wales. (2) Is there a special factor involved which warrants expedition. Usually these factors will be: (a) the loss of witnesses if the case is not fixed at an early date; (b) matters of public importance; (c) that the subject matter of the litigation will be lost if it is not heard quickly; (d) that the litigation to date has been delayed through no fault of the applicant; (e) that the applicant is suffering hardship not caused through his own fault; (f) that there is self-induced hardship (including those cases where corporate bodies fix a meeting date in the near future and then expect the Court to displace all other matters to hear their dispute before that date); (g) the nature of the case (for example, ejectment, child custody); and (h) that there are large sums of money involved. There may, of course, be other matters which can count as special factors, but the list that I have given is what occurs in the usual case. The health or age of parties or witnesses may, of course, come under (a), (c) or (e) or all of those headings. (3) Have the parties proceeded up to the date of the hearing of the motion for expedition with due speed? (4) Are the parties willing if expedition is granted to do all in their power to abridge the hearing time including joining in an agreed bundle of documents, preparing statements of witnesses, filing lists of objections to affidavits, making admissions of matters not really in dispute and restraining wide-ranging cross-examination. Of course there will always be cases where one party's interests are to delay resolution of the dispute as much as possible. Such cases can usually be recognised and special procedures adopted. Then there are two factors dealing with the exigencies of the list, viz: (5) Any application for expedition must be judged in the light of the number of other cases of equal or higher priority that also seek an expedited hearing. (6) Any "right" to expedition is a right to have the case fixed on one occasion. If, after a date has been fixed, it has to be vacated, it is difficult indeed to justify again expediting the proceedings: Ron Hodgson Cabramatta Pty Ltd v Wewoka Pty Ltd t/as B P Cabramatta Motors (Waddell CJ in Equity, 30 March 1989, unreported). The question here is whether there is a seventh guideline, namely, that one should not expedite a case where the chances of the applicant for expedition securing what it wants in the proceedings are not high. This point arises because the defendant submits that because of the matters I have already canvassed, the chances of the plaintiff obtaining equitable relief must, according to the defendant, be slim. I do not think that the Court, ought in an application for expedition, to make an assessment of the applicant's chances of success. However, I do agree that there is a seventh guideline, namely, that the Court should not expedite a case if it considers that in all the circumstances the chances of the applicant obtaining what it seeks in the litigation cannot be put as higher than speculative."