Menzies v Paccar Financial Pty Ltd (No 3) [2014] NSWCA 11

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Menzies v Paccar Financial Pty Ltd (No 3) [2014] NSWCA 11 Hearing dates: 7 February 2014 Decision date: 07 February 2014 Before: Basten JA; Macfarlan JA; Barrett JA Decision: (1) Allow the application to review the judgment and orders of Leeming JA of 21 January 2014 to the extent necessary to give effect to the following orders and directions. (2) Vacate the listing of the appeal for hearing on 10 and 11 February 2014. (3) Set aside orders (6) and (8) made on 21 January 2014. (4) Direct that the costs of the proceedings before Leeming JA on the motions of 9 December and 12 December 2013 be costs in the appeal. (5) Order that the costs of the review application be costs in the appeal. (6) Stand the appeal over to the Registrar's list on Monday, 10 February 2014 for further directions in accordance with these orders and proposed directions. (7) Direct that: (a) the Court Book filed by the respondent stand as volume 1 of the Blue Appeal Book; (b) the appellants prepare the following further volumes of the Blue Appeal Book (in the form of folders) containing so much of the material falling into the following categories as they seek to rely upon in support of their appeal: (i) material before the trial judge at the hearings on 14 May 2013, other than the Court Book, to form volume 2 of the Blue Appeal Book; (ii) material admitted as evidence on the adjournment application on 13 May 2013, to form volume 3 of the Blue Appeal Book; (iii) material tendered on the reopening application on 13 June 2013, to form volume 4 of the Blue Appeal Book; (iv) any extra material served on the respondent on 12 June 2013 and not admitted in evidence on the reopening application, to form volume 5 of the Blue Appeal Book; (v) any other material sought to be relied upon by the appellants for the purposes of the appeal, together with a motion seeking to rely on the material and an affidavit to explain why the material is relevant, to form volume 6 of the Blue Appeal Book; (c) if the appellants wish to rely on the transcript of the hearing before Registrar Bradford on 7 May 2013 they make it a supplementary Black Book; (d) the appellants file written submissions (not exceeding 20 pages) in lieu of any affidavits and submissions presently before the Court, identifying concisely and without discursive explanation, the documentary material in the Blue Appeal Books upon which reliance is placed and the purpose for which it is relied upon; (e) the appellants to prepare a chronology setting out the dates of critical events to which they propose to refer in the course of the appeal; (f) the respondents to file written submissions (not exceeding 20 pages) in lieu of the submissions filed on 4 February 2014; (g) the appellants to file written submissions in reply (not exceeding 7 pages). (8) Direct that the Registrar: (a) fix a timetable for the preceding steps to be taken as expeditiously as practically possible; (b) fix dates for the hearing of the appeal, and (c) if requested by the President at any time, refer the matter for case management by a judge of the Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE AND PROCEDURE - interlocutory application - review of direction under Supreme Court Act 1970, s 46(4) - whether hearing dates for appeal should be vacated - alleged non-compliance by Registry with UCPR, r 51.24 dismissed - inadequacy of material available for hearing dates Legislation Cited: Supreme Court Act 1970 (NSW), ss 19, 46, 75A Uniform Civil Procedure Rules 2005 (NSW), rr 51.2, 51.51, 51.24; 51.53, 51.42. 51.43 Cases Cited: Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274 Lo v Iverach [2009] NSWCA 92 Paccar Financial Pty Ltd v Menzies (No 3) [2013] NSWSC 551 Paccar Financial Pty Ltd v Menzies (No 4) [2013] NSWSC 743 Paccar Financial Pty Ltd v Menzies (No 5) [2013] NSWSC 772 Patrick v Howorth [2002] NSWCA 285 Porter v Gordian Runoff Ltd [2004] NSWCA 171 Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; 60 NSWLR 143 Category: Interlocutory applications Parties: Ian David Menzies (First Appellant) Colleen Anne Menzies (Second Appellant) Paccar Financial Pty Ltd (Respondent) Representation: Counsel: