Saad v State of NSW (No 2) [2014] NSWSC 296

Supreme Court New South Wales

Medium Neutral Citation: Saad v State of NSW (No 2) [2014] NSWSC 296 Hearing dates: 05/02/2014 Decision date: 05 February 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) Application to defer delivery of judgment to 14 February 2014 is refused. Catchwords: PROCEDURE - civil - interlocutory issues - vacate hearing; application to - defer delivery of judgment on application to vacate hearing; application to - whether in the interests of justice Category: Interlocutory applications Parties: Fred Saad (P) (2007/265173) Ashley Saad (P) (2008/20521) State of New South Wales (D) (in both matters) Representation: Counsel: A Margiotta (P) I Temby QC / D Villa (D) Solicitors: Margiotta Solicitors (P) NSW Crown Solicitors Office (D) File Number(s): 2007/265173, 2008/289620

ex tempore Judgment 1Yesterday, application was made by counsel on behalf of the plaintiffs, to vacate the hearing dates for the final hearing which is presently fixed to commence on 10 February 2014 for a period of about seven weeks. Having heard counsel for the plaintiffs in support of the application and senior counsel for the defendant in opposition to that application, I indicated that I would consider my decision and that I would deliver my decision orally at 10 o'clock this morning. 2Prior to delivery of judgment, the solicitor for the plaintiffs sought to stand the judgment down until 2pm today because he indicated to the Court that arrangements were in place to satisfactorily brief senior counsel, and that he was confident that the matter could proceed to commence a hearing on 18 February 2014. Over the opposition of counsel for the defendant, I stood the matter down until 2pm. I considered that it was appropriate in the interests of justice so to do. 3At 2pm, the solicitor for the plaintiffs informed me that he had spoken with senior counsel. Senior counsel had some but limited availability between now and 18 February 2014 which he was prepared to devote to reading the briefed materials, and making an assessment of the reasonableness of the prospects of success of the plaintiffs' claims, and putting himself in a position whilst doing that, to be ready to commence to present the plaintiffs' case on 18 February 2014. Senior counsel had five weeks availability, commencing that week, to conduct the hearing. 4Senior counsel required as a condition of his acceptance of the brief that an appropriately experienced junior counsel also be retained. Although the solicitor for the plaintiffs has spoken to a number of junior counsel, either directly, in person or else to their clerks, to ascertain their availability, he has not retained any junior counsel. 5It is quite clear that the proposed senior counsel, who is an experienced and capable senior counsel, has received only the bare minimum of the documents, namely, the present pleadings, largely consisting of a statement of claim of approximately sixty pages. He has not received any other part of his brief. At the very least, that brief will consist of the twenty-eight folders of the court book which have been prepared. I have no doubt that senior counsel, to whom the solicitor for the plaintiffs has referred, would make every effort to undertake the work in preparation for and assessment of the prospects of success as expeditiously as is possible. 6The application that is now put by Mr Margiotta, solicitor for the plaintiffs, is that I should adjourn and defer delivery of judgment until Friday14 February 2014, so as to enable a more firm assessment to be made of the likely readiness for trial of the proceedings. Senior counsel for the defendant opposes such course. He submitted that having regard to the nature of and complexity of the matter, the size of the material which it would be necessary for any newly briefed senior and junior counsel to absorb, that the prospect of this case being ready to commence hearing on 18 February was negligible. As well, senior counsel drew the court's attention to statements made by counsel for the plaintiffs yesterday, in the application before the Court, the effect of which was that the court ought vacate the hearing because it would take a number of weeks for any newly briefed barrister to read and assess the material in the appropriate way. Senior counsel submitted that the statements made today reflected an optimism which was not present in the submissions made yesterday, and that the statements made today were unrealistic and the court would not accept them. Senior counsel for the defendant also pointed to the fact that whilst ever the status of the commencement of these proceedings remained unclear, the defendant was continuing to incur costs against the prospect of the proceedings commencing, when those costs were in all practical reality unrecoverable by the defendant. 7Accordingly, the first decision I need to make is whether to grant the application by the solicitor for the plaintiffs, to adjourn the delivery of judgment on the plaintiffs' application, which was made yesterday, vacate the hearing date to 10am on Friday, 14 February 2014. I am not prepared to do so. It is my assessment that even if, with the best will in the world, senior counsel were to be briefed, having regard to the pleadings in this matter and to 28 volumes of papers, and having regard to what I have been told about senior counsel's other commitments in the period between now and 14 February 2014, I am not at all confident that the court would be presented with a case which was ready to commence the following week. 8There is real prejudice to the defendant which would be irremediable by requiring the defendant and its counsel to, in effect, hang about for another ten days or so, to see whether a very small chance that the case will be ready to proceed on 18 February comes to fruition; and even then, if it did, there is little prospect of the case finishing within the time allotted by the court and which senior counsel proposed to be briefed for the plaintiffs has available. 9Accordingly, it would not be fair to the defendant nor would it be in the interests of justice for the court to defer delivering its judgment on the application which the plaintiffs made yesterday. Accordingly, I reject the application to defer for any longer the delivery of judgment with respect to yesterday's application. 10I now proceed to deal with the application made yesterday. 11For reasons which I will publish in due course, I have decided that it is in the interests of justice to order that the hearing listed to commence on 10 February 2014 in these proceedings should be vacated. I have decided that the plaintiffs should pay the defendant's costs of and occasioned by the vacation of the hearing date. I will reserve to the defendant leave exercisable within fourteen days to make application for costs on any different basis, and that they be paid by anyone else other than the plaintiffs. 12I also reserve liberty to the plaintiffs themselves to make application by whom the costs orders against them ought to be paid. Such application to be made within fourteen days of today's date. 13I indicate that I will publish my reasons as soon as can conveniently occur. 14It seems to me to be appropriate to list the matter for directions in fourteen days time at 9.30am on 19 February 2014. On 19 February 2014, the Court ought to be told what orders are being sought with respect to costs, and what is necessary to deal with that matter. By 19 February 2014, I anticipate being told by senior counsel for the plaintiffs, if senior counsel be retained or if not by the plaintiffs' solicitor, what the position is about for readiness for hearing, and when another date for hearing can be arranged.