Arnold v Minister Administering the Water Management Act 2000 (No 2)

[2009] NSWLEC 55

Land and Environment Court

of New South Wales

CITATION:

Arnold v Minister Administering the Water Management Act 2000 (No 2) [2009] NSWLEC 55

PARTIES:

APPLICANTS:
Alan Arnold & Ors

FIRST RESPONDENT:
Minister Administering the Water Management Act 2000

SECOND RESPONDENT:
The State of New South Wales

THIRD RESPONDENT:
The Commonwealth of Australia

FILE NUMBER(S):

40049 of 2007

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- last minute insubstantial consent application to vacate hearing date - application refused.

LEGISLATION CITED:

Civil Procedure Act 2005, s 57

CASES CITED:

Arnold v Minister Administering the Water Management Act 2000 [2007] NSWLEC 531, (2007) 157 LGERA 379
Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338, (2008) 163 LGERA 429

DATES OF HEARING:

7 April 2009

EX TEMPORE JUDGMENT DATE:

7 April 2009

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P King
SOLICITORS
Taylor & Whitty

RESPONDENTS:
Ms M Nagy
SOLICITORS
Australian Government Solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

7 April 2009

40049 of 2007

ALAN ARNOLD & ORS v MINISTER ADMINISTERING THE WATER MANAGEMENT ACT 2000 & ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a last minute oral application by the applicants, supported by the third respondent, the Commonwealth of Australia, to vacate the hearing today of two notices of motion which were filed more than a year ago. One is by the applicants charging the Commonwealth with contempt of court. The other is by the Commonwealth seeking costs against the applicant.

2 The background is that in 2007 the Commonwealth moved successfully for a stay of the proceedings against it: Arnold v Minister Administering the Water Management Act 2000 [2007] NSWLEC 531, (2007) 157 LGERA 379. Lloyd J reserved costs. An appeal was dismissed with costs: Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338, (2008) 163 LGERA 429.

3 Meanwhile, the two notices of motion filed long ago have been languishing. The first is a notice of motion filed by the applicants on 22 August 2007 charging that the Commonwealth is “in Contempt of Court insofar as it, its servants and/or agents or delegates have threatened the Applicants in the proceedings”. The second is a notice of motion filed by the Commonwealth on 31 January 2008 seeking an order that the applicants’ pay the Commonwealth’s costs of the proceedings and of that notice of motion. The parties were all legally represented at a directions hearing when both notices of motion were fixed for hearing today, 7 April 2009.

4 On 1 April 2009 the Commonwealth’s solicitor, the Australian Government Solicitor (AGS), faxed a letter to the Registrar of the Court, which relevantly said:

“Unfortunately the hearing date was agreed to whilst the undersigned was on leave. If it is at all possible to change the hearing date to any day in June we would be greatly obliged.

We have conferred with the Applicants’ solicitor who has consented to the motions being heard in June.”

5 On 2 April 2009 the registry responded, stating that if vacation of the hearing date was sought a notice of motion should be filed. No notice of motion to vacate the hearing date was filed. This morning the contempt notice of motion and the costs notice of motion came on for hearing before me. I was then handed proposed consent orders whereby the hearing of the two notices of motion would be adjourned to a date to be fixed by the Registrar and there would be a timetable for the parties to file and serve any further material on which they propose to rely. There was no evidence in support of what was in effect an oral adjournment application and I called on the parties to make submissions as to why it should be granted.

6 I was informed from the bar table that (a) an application for special leave to appeal to the High Court is pending and that there is an originating summons in the High Court on a cognate matter; (b) some time ago there was a tentative agreement entered into between the applicants and the Commonwealth to postpone the hearing of the notices of motion but that no finalised agreement in that regard was reached until late last week; and (c) the parties are seeking to have a June 2009 date for the hearing of the notices of motion. I do not see that those matters weigh in favour of vacating the hearing date.

7 The applicants indicated in a general and unparticularised way that they wish to add further particulars of contempt and to file additional evidence in support of their contempt notice of motion, and that they are considering bringing contempt proceedings against the first respondent. The absence of any reason as to why these matters had not been attended to earlier and their lack of particularity weigh against vacating the hearing date.

8 The Commonwealth informed me that it is ready to proceed on its costs notice of motion and that the starting point of their submissions in that regard will be simply that costs should follow the event. The Commonwealth suggested that if the applicants were to bring contempt proceedings against the first respondent, it might be convenient and efficient for the court to hear both contempt motions together. That may be so but the position at the moment is that the applicants have not instituted, nor even decided to institute, any contempt proceedings against the first respondent; the matter does not rise higher than the proposition that the applicants have that course under consideration.

9 For the purpose of furthering the facilitation of the just, quick and cheap resolution of the real issues in proceedings, courts are subject to a statutory requirement to manage proceedings having regard (among other things) to the efficient disposal of the business of the court; the efficient use of available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the court: s 57 Civil Procedure Act 2005. Hearing dates are not to be vacated lightly. It is not the practice of the Court to vacate hearing dates merely because the parties consent. Other litigants are adversely affected by a late application to vacate hearing dates in that it is then too late to allocate the dates to the hearing of their matters, and the hearing dates are wasted. The statutory objects of case management would be seriously undermined if hearing dates were to be vacated on last minute, insubstantial applications such as this. In my view, there is no sound reason to vacate the hearing date of this matter.

10 Accordingly, the application to vacate the hearing date is refused.