Supreme Court New South Wales Medium Neutral Citation: In the matter of Elsmore Resources Ltd [2016] NSWSC 884 Hearing dates: 12 April 2016 Decision date: 12 April 2016 Jurisdiction: Equity - Corporations List Before: Black J Decision: Application to vacate hearing dates dismissed. The Third Defendant to pay Plaintiff's costs of application as agreed or as assessed. Catchwords: PROCEDURE — Application to have hearing dates vacated — where Applicant had previously been granted a vacation of hearing dates – whether principles in ss 56–58 of the Civil Procedure Act 2005 (NSW) support the vacation of hearing dates. Legislation Cited: - Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60, 61. Cases Cited: - Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 Category: Procedural and other rulings Parties: Elsmore Resources Ltd (Plaintiff) Ashley Grant Howard (First Defendant) Periwinkle Investments Pty Ltd (Second Defendant) Harry Fung (Third Defendant) HF Global Corporate Financial Solutions Pty Ltd (Fourth Defendant) Representation: Counsel: E Cox (Plaintiff) S Clemmett (Third Defendant) Solicitors: Norton White (Plaintiff) Stevens Vauran Lawyers (Third Defendant) File Number(s): 2014/57738 Judgment – ex tempore (revised 12 april 2016) 1. By oral application made today, 12 April 2016, the Third Defendant, Mr Fung, applies for the second time to vacate a lengthy hearing in this matter, which is presently listed to proceed over five hearing days on 28–29 and 3–5 May 2016. I refer to this being an application for the second time because, in circumstances to which I will refer below, Mr Fung was previously successful in an application to vacate the previous hearing dates of proceedings when they were previously listed, that application having been also been made shortly before the hearing. 2. By way of background, these proceedings have been on foot at least since mid-2014. Nearly eight months ago, in August 2015, they were listed for hearing with an estimate of five days on 2–5 and 9 February 2016. On 22 January 2016, Mr Fung applied to vacate the hearing commencing on 2 February 2016, referring to financial difficulties in respect of the retainer of solicitors and an application for legal aid. A question arose at that point, which it was ultimately not necessary to resolve, whether Mr Fung had terminated the retainer of his solicitors or they had ceased to act. 3. The matter was initially listed before me on 2 February 2016, when I delivered an ex tempore judgment in respect of Mr Fung's application to vacate the hearing dates. I there referred to the relevant principles in respect of such an application, and noted the real prejudice, involving the public interest, in vacating a hearing for five days when an application to do so was made shortly before the commencement of the hearing. I did not determine the application on that day, but stood it over for further argument on the following day. On 3 February 2016, Mr Fung again requested that the hearing dates be vacated and, importantly, adjourned for a three month period (T24) so that he could be paid for employment services that would facilitate his legal representation. He then referred to preliminary discussions which he had had with a law firm, which had indicated that they would need between one and three months to prepare for the trial, and indicated that that was why he requested a three month period by way of adjournment of the hearing. He also confirmed, at that point, that he had access to the court book in the proceedings (T24), and has reconfirmed that matter in cross-examination today. 4. In my further judgment, delivered ex tempore on 3 February 2016, I noted that I had formed the view that the Court then had little real alternative other than to vacate the hearing dates, although I pointed (at [2]) to the very significant prejudice that arose, in smaller part to the Plaintiff and in substantial part to the public interest, by that course. I again noted that the prejudice to the public interest was substantial, so far as the matter had been allocated for hearing over five hearing days, and other litigants, who would otherwise have had matters heard in those five days, would have been shut out from a hearing or had their hearings delayed in order to list the matter which would not then proceed. The Plaintiff then accepted that the hearing dates could be vacated on the basis that the matter would be listed for hearing, as it was, in the relatively near future. That further listing is, of course, the hearing which Mr Fung now seeks to vacate. I also there noted, in a passage to which Ms Clemmett, who appears for Mr Fung, refers but does not wholly accept that: "It may be that the estimate of time required to prepare for a hearing is unduly conservative, in circumstances that Mr Fung's evidence, by way of affidavit has already been filed; a court book, in three volumes, has been served by the plaintiff, which could readily be provided to the new solicitors and new counsel retained by Mr Fung [where, I interpolate, Mr Fung had then acknowledged it was already in his possession]; the shape of the case is already established, and there is little prospect it could now be reformulated, by way of radical amendments by Mr Fung or by any other party." 1. I also noted that I had allocated hearing dates in mid-May, which allowed a little more than the time that Mr Fung had requested to prepare for a further hearing. In the event, the hearing dates which have been allocated, in mid-May, are still nearly a month away from today. 2. I also observed, in paragraph 10 of my judgment, that there were occasions on which parties, by reason of financial or other constraints, were required to represent themselves in proceedings, and noted that Mr Fung was a professional person, and not amongst the class of the most disadvantaged persons in that respect. Mr Fung is now in a more favourable position because he has retained solicitors, and, in circumstances that a hearing has been allocated for those proceedings, they would not now be entitled to cease to act for him without leave of the Court. Mr Fung can therefore be relatively secure in the availability of representation to him, in respect of the hearing, unless the Court is persuaded that it should grant such leave, notwithstanding the imminence of the hearing dates. I also noted, in paragraph 10 of that judgment that: "It would be a significant step for the Court to vacate a hearing of this length, which has been prepared for hearing over a long period, on a second occasion, and there would be significant issues involved in any such application, if it ultimately had to be made." 1. With that background, Ms Clemmett draws attention to several aspects of the present position, in supporting an application to vacate the hearing dates of these proceedings for a second time. First, Ms Clemmett submits that Mr Fung retained his present solicitors over the weekend, although Mr Fung's oral evidence suggests that he approached the solicitors previously although that retainer may have only been accepted by the solicitors over the weekend. Ms Clemmett opened on the basis that the solicitors had not yet seen the relevant material and had only received the court book today. That submission was puzzling, and has not been explained by evidence before me, in circumstances that Mr Fung had accepted, as long ago as February 2016, that he had a copy of the court book, and I had emphasised his ability to provide it to his new solicitors in my earlier judgment. 2. Ms Clemmett drew attention to the fact that Mr Fung's former solicitors have not yet released their file, although it should be noted that the email on which Mr Fung relies, in that respect, is a response dated 8 April 2016, four days ago, to an email from Mr Fung which is not in evidence; that email notes that the amount of $10,000 in solicitors' fees and approximately $7,000 in counsel's fees are outstanding, and appears to open the possibility that the file would be released if counsel's fees were paid. It is also not clear to me, given the oral evidence which has been led by Mr Fung and his cross-examination by Mr Cox, who appears for the Plaintiff, that there is likely to be significant material contained in the solicitors' file that would not be contained in the court book, which Mr Fung has had for several months, the Court file, which is available for inspection by his solicitors, and the subpoenaed material which would be available for inspection in the ordinary course, and Mr Fung's personal emails to which he has continuing access. If there is, then it appears from the correspondence that Mr Fung may well be able to obtain access to it on payment of a modest amount, by way of counsel's fees, to his former solicitors. There is, I should emphasise, no comprehensive evidence led by Mr Fung as to his financial position which indicates any inability to pay such an amount, although he gave some limited evidence in cross-examination suggesting that some property holdings which he held, or one property holding which he now held, had been mortgaged in respect of previous costs in the proceedings. 3. Ms Clemmett also referred, in the course of submissions, to a new issue which had been identified by Mr Fung's new solicitors since they had been briefed, in respect of the extent of the payment which had been made, or which was due, which was the subject of a compromise or settlement that is challenged in these proceedings. It seems to me that, with all respect to Ms Clemmett, the identification of that new issue did not raise any particular question in respect of the vacation of the hearing dates. It is not uncommon, in complex litigation, that new issues are identified, even close to a trial. From time to time, applications to amend are made, and they may be made close to the hearing. In that case, the court will determine such an application having regard to the principles set out in ss 56–61 of the Civil Procedure Act 2005 (NSW) and the amendment will be permitted if it ought to be permitted in the interests of justice, and having regard to the need for the just, quick and cheap resolution of the matters in dispute. Mr Cox suggests that the matters which are sought to be raised may well be legal issues only, and if that is so, then it may be more likely that an amendment is granted. With all respect to Ms Clemmett's submission, it does not seem to me that a party who seeks to amend his case, shortly before trial, is in any stronger position to vacate the hearing dates, because he retains new solicitors, than if that application had been made by his former solicitors. In each case, it seems to me that that application should be determined on its merits, and if Mr Fung does seek to amend his defence to raise this issue, then a month is now available before the hearing in which he may apply to do so. 4. Ms Clemmett identified the possibility the Plaintiff may seek to lead new evidence, in respect of that matter. Again, it did not seem to me that that causes any particular difficulty for the hearing dates, because it may well be that the Plaintiff, if it seeks to lead new evidence, will consent to a short timetable for it to do so, in circumstances that it no doubt has an interest in retaining hearing dates which were once before vacated, in proceedings which have taken over 18 months to reach trial. Ms Clemmett also pointed to the parties in having an interest in narrowing the matters in dispute, but it seems to me that a month's time before the hearing, while not a luxurious period, will be sufficient time for them to do so. Equally, Ms Clemmett points to the possibility that further subpoenas will be issued, although that possibility is at best somewhat tentative, in circumstances that the new issue has not yet been crystallised, and the court has the capacity to abridge service for subpoenas or take other steps which may be desirable to facilitate that course, if ultimately Mr Fung wishes to issue further subpoenas in that way. 5. With this background, I should return to the principles that I am required to apply in dealing with this application, which are well established. Section 56 of the Civil Procedure Act provides that the overriding purpose of the Act and the rules of the court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings. The court is required to give effect to the overriding purpose when it exercises any power given to it by the Act or by the rules of court. Section 58 requires the court, in deciding whether to make any order or direction in proceedings, to act in accordance with the dictates of justice, and for the purpose of determining what are the dictates of justice in a particular case, the court must have regard to the provisions of ss 56 and 57, and may have regard to specified matters, including the degree of expedition with which the respective parties have approached the proceedings, the degree to which they have been timely in the interlocutory activities, and the use which they have made, or could have made, of any opportunity available to them in the course of proceedings, and the degree of injustice which will be suffered by the respective parties that is a consequence of any order or direction. 6. It seems to me that, recognising that Mr Fung may have laboured under financial constraints, although I have noted above that the evidence in that respect is hardly comprehensive, there is something of a lack of expedition in his approach to these issues, which is reflected in an application to vacate the hearing dates made shortly before it is due to commence, now for a second time, and there is a real injustice to the Plaintiff, having waited for over 18 months to reach a hearing, to now face the threat of that hearing being vacated for a second time. Conversely, it seems to me that there would be little or no detriment to Mr Fung in proceeding to a hearing, where he has now obtained representation. 7. Section 57 in turn requires the court to have regard to specified matters, including the just determination of the proceedings, the efficient disposal of the court's business, the efficient use of available judicial administrative resources, and the timely disposal of the proceedings and all other proceedings in the court, at a cost available by the respective parties. I do not, in that respect, treat the convenience of the Court as a matter of any particular significance. What is, however, of great significance is that the community funds the justice system, and the community depends upon access to the justice system. In the present case, it seems to me that the course of vacation of hearing dates, set down well in advance for lengthy periods, on more than one occasion, is destructive of the public interest in the proper administration of justice. I use the word destructive, which is a strong word, advisedly. It seems to me that it is prejudicial to other members of the community that hearing dates should be set, and then vacated at short notice, in circumstances that those other members of the community will be deprived of hearings which could have been allocated in that period. 8. In Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [37] Allsop ACJ observed that the provisions to which I have referred bring about: "[A] new statutory balance among various factors in litigation including court and party efficiency and the delivery of individual justice. Delay and case backlog are not merely factors affecting the public cost of delivering justice, they corrode the ability of the courts to provide individual justice ... The reforms that have taken place under the Civil Procedure Act ... can thus be seen not merely to reflect worthy governmental and judicial efforts for efficiency, but also to be vital for the provision of timely individual justice. To these salutary ends significant powers of case management have been placed in the hands of judicial officers which, if exercised, can often be seen to have sharp, and sometimes detrimental effects on the claims of parties." 1. I am far from convinced Mr Fung will be disadvantaged, in any significant respect, in going to hearing in a month's time, in circumstances where any application to amend that he wishes to make can be made prior to that time, and any evidence that needs to be led and any subpoenas that needs to be issued can be the subject of case management by the Court. However, even if there were any detriment to Mr Fung in that respect, I am satisfied that the interests of justice, not only to the Plaintiff, but to the community generally, and the interests of the prompt resolution of proceedings, so that the delivery of justice is not corroded by delay, strongly support a refusal to vacate the hearing dates in this matter. 2. For these reasons, I am not satisfied that I should accede to the application to vacate the hearing dates. That application should be dismissed with costs, as agreed or as assessed. ********** 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: 06 July 2016