Bryden, James as Executor of the Estate of John Anthony (deceased) v Minister for Lands & Ors [2011] NSWSC 919

Supreme Court New South Wales

Medium Neutral Citation: Bryden, James as Executor of the Estate of John Anthony (deceased) v Minister for Lands & Ors [2011] NSWSC 919 Hearing dates: 7/04/2011 Decision date: 07 April 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Refuse to make orders 1, 2, 3 and 4 in amended notice of motion. Catchwords: PRACTICE AND PROCEDURE - Application to set aside order granting access to third and fourth defendant's property for 21 days - plaintiff alleged to have obtained judgment by fraud or false evidence - access period still has 7 days to run - plaintiff entitled to respond to allegation - exigencies of duty judge list not amenable to determining such applications. Category: Procedural and other rulings Parties: James Bryden as executor of the Estate of John Anthony (plaintiff) Minister for Lands (first defendant) Land and Property Management Authority (second defendant) Scott Hunter (third defendant) Helen Hunter (fourth defendant) Representation: Counsel: Ms K Traill (plaintiff) Mr A S Monzo (first & second defendants) Mr C Evatt with Mr J Foster (third & fourth defendants) Solicitors: Unsworth Legal (plaintiff) Jennifer Jude (first & second defendants) The People's Solicitors (third & fourth defendants) File Number(s): 2011/84001

Judgment (ex tempore) 1HIS HONOUR: On 24 March 2011, after the plaintiff's interlocutory application had been before Rein J as Equity Division Duty Judge for the preceding four days, his Honour made orders in the following terms: 1. The Third and Fourth Defendants give the Plaintiff, his servants and agents, unlimited 24 hour access from Norman Lee Road to the Plaintiff's property (known as Lot 147, Hampton) along the route being a track across the Third and Fourth Defendants' property such track as shown in red on Exhibit 1 and the dotted line on Exhibit 3D3 for a period of 21 continuous days, which period will commence on Saturday 26 March 2011. 2. Access is to be permitted for pedestrians, tractors, four wheel drives, utes, 8 tonne cattle trucks, quad bikes, and post hole diggers necessary for the care, penning and movement of cattle belonging to the Plaintiff. 3. Graham Wardell, Maxine Wardell and Ben Hanson are not permitted access pursuant to these orders. 4. The Plaintiff is to keep a written log of vehicles and provide a copy of such log to the Third and Fourth Defendants at the conclusion of the 21 day period. 5. Matter stood over to the Expedition List on 8th April 2011. 6. Liberty to apply on 24 hours notice. 7. The Plaintiff agrees to indemnify and keep the First Defendant indemnified of any liability which the First Defendant may have arising from the use of any part of the Crown Road the subject of these proceedings, in the Plaintiff's exercise of orders 1,2,3 and 4 herein. 8. Costs reserved. 2It is tolerably clear that those orders were made after negotiations between the parties, when aspects of the issues had been ventilated before Rein J and his Honour had invited the parties to negotiate a compromise. It is not entirely clear whether or not they were truly consent orders, but for present purposes I do not think that particularly matters. As will be observed from those orders, the proceedings generally were adjourned to the expedition list tomorrow, 8 April 2011, when they presently remain listed. 3Earlier this week, the solicitor for the third and fourth defendants approached my associate to have the matter listed in the duty list this week, and it was accordingly listed for today. So far as I can tell, no notice of motion was filed until an amended motion was handed up in the course of the hearing today, but the other parties plainly enough were notified of the listing because they are here, and may have been told in general terms of the relief to be sought. 4As I have foreshadowed, in the course of the hearing the third and fourth defendants sought leave to file a document entitled 'Amended Notice of Motion', claiming the following relief: 1. That the Court dismiss that part of the Plaintiff's claim for urgency on the grounds that such claim was an abuse of the process of the Court (Part 13 Rule 13.4(1)(c)). 2. The orders of Rein J made 24.3.2011 be set aside. 3. Matter removed from the expedition list of 8 April 2011. 4. The Plaintiff pay the Third and Fourth Defendants' costs of 21, 22 [ and ] 23 March 2011 on an indemnity basis. 5. The Plaintiff file and serve a Statement of Claim within 21 days and the matter proceed in the General List. 6. Costs. 7. For such further or other orders as this Honourable Court shall deem necessary. 5The third and fourth defendants' case on the present application, in short, is that the proceedings before Rein J and the orders which resulted from them are the result of an abuse of process and should be set aside, by reason that a false case of urgency was put to Rein J as Duty Judge. In essence, this is an allegation of obtaining a judgment by fraud or false evidence. It must be self-evident that, faced with such a grave allegation, the plaintiff as respondent is at least entitled to an opportunity to put on evidence in response to it. 6The order made by Rein J provided for access for a period of twenty-one continuous days. Seven of those days remain, with only fourteen having elapsed. Even in the absence of further evidence, I doubt that it could be inferred, from the circumstance that more has not taken place, in terms of exercising access under the order, than has to this point, that there was no need for such orders as the plaintiff originally claimed. In any event, the plaintiff is entitled, at the very least, to an opportunity to explain that situation. 7A contest, essentially over whether false evidence was put before the Duty Judge, would necessarily involve examination and cross-examination of witnesses. The exigencies of the duty list do not lend itself to that course. 8Insofar as it is complained that the case of urgency is a false one and that the plaintiff should not be allowed to queue jump even in circumstances where - as is conceded - the plaintiff has an arguable case for final relief, the validity of the claim for urgency is exactly what the Expedition Judge will be asked to determine tomorrow. And even if the case for urgency were not as originally put by the plaintiff, disputes of this nature concerning access to land are almost always appropriate for a speedy trial. 9It might be borne in mind that it has not infrequently been observed that the surest way to ensure that an application for expedition succeeds is to oppose it. 10The procedural directions are matters that can appropriately be dealt with before the Expedition Judge. 11Upon the undertaking of Kingsley Liu, solicitor, to pay the appropriate filing fees, I grant leave to the third and fourth defendants to file a motion in the form entitled Amended Notice of Motion, initialled by me, dated this day and placed with the papers. I direct that the motion be returnable instanter. I dispense with further service of the motion. I refuse to make orders 1, 2, 3 and 4 in the motion. I adjourn the balance of the motion to be heard with the application for expedition before the Expedition Judge tomorrow. I order that the third and fourth defendants pay the plaintiff's costs of the motion to date.