Supreme Court New South Wales Medium Neutral Citation: Tong Hi To v Revro Pty Ltd; Tong Hi To v Gerard Lighting Pty Ltd [2016] NSWSC 467 Hearing dates: 5 April 2016 Date of orders: 05 April 2016 Decision date: 05 April 2016 Jurisdiction: Common Law Before: Wilson J Decision: 1. The hearing of both matters currently listed for 11 April 2016 is vacated. 2. I make an order for costs against the plaintiff in favour of the defendant for payment of the costs of Revro Pty Ltd. 3. Leave is granted to the plaintiff to join DRM Engineering Pty Ltd as second defendant in the proceedings. 4. The matter is otherwise stood over to the Registrar's list on 13 April 2016 at 9am for a timetable to be set. Catchwords: CIVIL LAW – procedure – application to vacate hearing date – expert opinion Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Category: Procedural and other rulings Parties: Tong Hi To (Plaintiff) Revro Pty Ltd (Defendant) Gerard Lighting Pty Ltd (Defendant) Representation: L King SC (Plaintiff) S Holmes (Defendant – Revro Pty Ltd) J Catsanos (Defendant – Gerard Lighting Pty Ltd) File Number(s): 2013/31477; 2013/336635 EX TEMPORE Judgment 1. By notice of motion filed in the Registry of this Court on 30 March 2016 the plaintiff in these proceedings, Tong Hi To, moves the Court on his application to vacate the hearing date of this matter, presently listed for 11 April 2016 with an estimate of four days, that is, four days of Court time have been set aside to hear the plaintiff's statement of claim during the course of next week. 2. The defendant to the original statement of claim, Revro Pty Ltd, opposes the Court granting the orders sought, notwithstanding the offer from the plaintiff or at least the acknowledgement from the plaintiff that costs thrown away would have to be paid by the plaintiff. 3. Mr Catsanos is here for Gerard, an interested bystander. 4. The issue of the application to vacate the hearing date has arisen as a result of some expert opinion which has perhaps more clearly come to the attention of the plaintiff's legal representatives than it had hitherto done, but only in recent times, indeed during the course of March 2016. 5. At issue is the question of whether the injury said to have been caused to the plaintiff by the defendant's negligence is one arising from work done upon a particular machine, or from ongoing maintenance of that machine, or perhaps a combination of both. The expert material which has been more recently carefully examined by the plaintiff at least raises the prospect that maintenance is an issue here and, if maintenance is at issue, then the maintenance company, that being DRM Engineering Pty Ltd, would have to be joined as second defendant. 6. The defendant opposes the application and points to the obligation on both the parties and the Court to ensure that proceedings of this nature are dealt with expeditiously with the overall aim of achieving the objectives of the Civil Procedure Act 2005 (NSW), that is, the just, quick, and cheap resolution of the real issues in the proceedings. The defendant points to the length of time over which the matter has been before the Court, and indeed, the matter was listed for hearing in July of 2015. The defendant points to the availability of evidence concerning the maintenance of the machine which is said to have failed and caused injury to the plaintiff, and that that has been known to the plaintiff, at least it has been ascertainable by the plaintiff, since the middle of 2013 when a volume of material was produced on subpoena. 7. It seems that the plaintiff's legal representatives may have been less than diligent in gaining access to the material produced on subpoena, carefully examining it, and determining what, if any, consequences the material had for the plaintiff's case. As the defendant submits before the Court today had there been such diligence it is possible, if not inevitable, that the plaintiff would have been alerted to the issue of maintenance well before March 2016, and DRM could have been joined at an earlier stage. The fact that this issue has arisen so close to the allocated hearing date means that the defendant is, it is submitted, prejudiced because of the level of preparation and work that has already gone into readying the matter for hearing next week. Those costs will be largely thrown away by the defendant. 8. Determining what is necessary to facilitate the just, quick and cheap resolution of the real issues in the proceedings is not necessarily always a straightforward issue. The order in which those words are given in the statute, with justice taking the premier position, to my mind, is of some significance. It is important that the Courts maintain case management. It is important that other litigants have immediate access to the Court when such access is necessary, and delay is inevitably occasioned, not just to the parties before the Court in a particular matter, but to other litigants waiting to access the Court's services, where Court time is wasted through delay. 9. The just determination of the issues include not just the interests of the parties but also the interests of the justice system as a whole. The defendant relies on the authority of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, as authority for the proposition that the Court must have regard to the broader consequences of delay to the justice system and that, wherever it is possible, hearing dates ought be maintained. 10. It is pointed out for the plaintiff that, if there be an action against DRM, that action will have to be determined and whether it is run together with the action against the current defendant or separately, the current defendant will inevitably be involved either as a co-defendant or a cross-defendant. If the proceedings next week against the present defendant proceed, it may be that that case will be able to be determined, but the issues as a whole will not. 11. The fundamental issue is whether or not the negligence of either the current defendant or DRM or perhaps both has led to a substantial injury suffered by the plaintiff. It is that issue which ultimately has to be determined. Whilst I agree with the submissions made on behalf of the defendant that the preparation of the matter by the plaintiff's legal representatives appears to have been less than optimal, it seems to me that it would be unjust if the consequence of that were brought home to the plaintiff's prejudice. He has suffered, it appears, grave injury, and seeks to determine liability for that injury. To refuse his application today would not ultimately resolve the issues overall that the Court has to resolve with any greater expedition than if the adjournment were granted. Certainly, it would be preferable from the defendant's point of view, but the overall issues would remain to be determined. 12. Having regard to that, I propose to grant the plaintiff's motion and make the orders sought; that is: 1. The hearing of both matters currently listed for 11 April 2016 is vacated. 2. I make an order for costs against the plaintiff in favour of the defendant for payment of the costs of Revro Pty Ltd. 3. Leave is granted to the plaintiff to join DRM Engineering Pty Ltd as second defendant in the proceedings. 4. The matter is otherwise stood over to the Registrar's list on 13 April 2016 at 9am for a timetable to be set. ********** 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. Decision last updated: 19 April 2016