Andy's Earthworks Pty Ltd v Verey

[2011] NSWCA 383

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Andy's Earthworks Pty Ltd v Verey [2011] NSWCA 383

Hearing dates:

2 December 2011

Decision date:

02 December 2011

Before:

Allsop P

Decision:

1.The respondent to file in the submissions box and serve by 4.30pm Monday 5 December full written submissions as to why Doumit v Jabbs Excavations Pty Ltd [2009] NSWCA 360 should not be followed, bearing in mind the proper test reflected in Gett v Tabet [2009] NSWCA 76. Any submissions in reply by the applicant should be handed up in Court on Thursday, with a copy having been supplied to the respondent's counsel as soon as they are ready.

2.Costs of today be paid in any event by the respondent on an indemnity basis. Leave to assess if there be disagreement to be given forthwith.

[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.]

Legislation Cited:

Motor Accidents (Compensation) Act 1999 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Doumit v Jabbs Excavations Pty Ltd [2009] NSWCA 360
Gett v Tabet [2009] NSWCA 76

Category:

Procedural and other rulings

Parties:

Andy's Earthworks Pty Limited (Applicant)
Wayne Leslie Verey (Respondent)

Representation:

Solicitors:
Mr G Smith (Applicant)
Mr J Cairn (Respondent)

File Number(s):

2009/337610

Judgment

1. ALLSOP P : This matter is set down for hearing on Thursday 8 December. It is a short matter, set down for a half day, dealing with the Motor Accidents (Compensation) Act 1999 (NSW) . Arguably central to the disposition of the matter is an earlier decision of this Court in Doumit v Jabbs Excavations Pty Ltd [2009] NSWCA 360 .

1. The application for leave to appeal was filed on 5 July. Pursuant to the administrative arrangements of the Court, it was ordered that there be a concurrent hearing of leave and, should leave be granted, the appeal. That decision was made by myself on 11 August 2011.

1. The applicant, in compliance with the Uniform Civil Procedure Rules 2005 (NSW), has filed submissions with the white book. The respondent, in clear breach of the Rules, has failed to file any submissions or response until today. The response filed today is brief. It contains an assertion that Doumit is wrong. This was raised three days ago by the solicitor for the respondent with the Registrar. I will come back to the propriety of the communication in due course. I took the view initially that the most appropriate course would be to vacate the date if a five-judge bench were needed. The applicant in communication with the Registrar indicated an opposition to that, therefore I listed the matter this afternoon to deal with the matter.

1. I have spoken to the bench that is listed to hear the matter and what I propose to do has their concurrence. Of course, the matter is ultimately a matter for them in the conduct of the running of the appeal. The appropriate course is to leave the matter in the list before three judges. If it be the case that the Court becomes of the view that there is a serious question as to whether Doumit is plainly wrong (in the sense discussed in Gett v Tabet [2009] NSWCA 76 at [261] and following), the Court will adjourn to reconstitute for reargument or further argument in the New Year. That will of course entail additional significant cost. That cost will be borne in any event on an indemnity basis by the respondent.

1. If this matter had been raised in time, if the submissions had been filed in accordance with the rules, and if the Practice Note had been followed about notifying the Registrar as to the issue, listing could have taken place in the ordinary course. I am simply unable to throw two additional judges onto a bench in the second-last week of term.

1. It is regrettable that I have to deal also with another matter which reflects, if I may say so, not well on the solicitor for the respondent. He initially rang the Registrar for assistance as to what he should do, given his learning of the need to challenge Doumit . Such a phone call should have been unnecessary if he were aware of the Practice Note. Leaving that to one side, one can forgive such a call for assistance, which the Registrar gives on a daily basis to practitioners. However, the Registrar's indication was that he should be written to. What then happened was he was written to without the letter being sent to the applicant's solicitor.

1. The Registrar then spoke to me. I indicated a possible course of conduct, both the Registrar and I working on the assumption that the appropriate courtesy had been given to the applicant's solicitor, notifying him of the communication. In fact this had not occurred and the first thing the applicant knew about the matter was the Registrar's indication that I had a preliminary view that the date should be vacated. The applicant's solicitor should not have been put in this position, nor should the Court.

1. Communication should not take place with the Court about a matter in the absence of the other party except in appropriate circumstances giving rise to ex parte relief or applications. It is not only deeply discourteous between professionals, it undermines the authority of the Court, because it engenders in the other side in the litigation a belief that the Court is acting with the other side without their being told, and engenders suspicion and concern. Those matters undermine the authority of the Court. This matter should not have occurred. I have no doubt that it occurred by way of oversight and representatives on behalf of the solicitor apologised. Practitioners should understand that it is a matter of sufficient seriousness to be raised with the Law Society.

1. That said, the course that I propose in relation to the matter is, as I have said, to leave the matter in the list, and should further argument be necessary it will be subject to the views of the Court, paid for in any event on an indemnity basis by the respondent.

1. The orders I make today are as follows.

1. The respondent to file in the submissions box and serve by 4.30pm Monday 5 December full written submissions as to why Doumit should not be followed, bearing in mind the proper test reflected in Gett v Tabet . Any submissions in reply by the applicant should be handed up in Court on Thursday, with a copy having been supplied to the respondent's counsel as soon as they are ready.

2. Costs of today be paid in any event by the respondent on an indemnity basis. Leave to assess if there be disagreement to be given forthwith.

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Decision last updated: 08 December 2011