Australian International Aviation College Pty Ltd v Zheng
[2025] NSWCA 190
•18 August 2025
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Australian International Aviation College Pty Ltd v Zheng [2025] NSWCA 190 Hearing dates: 18 August 2025 Date of orders: 18 August 2025 Decision date: 18 August 2025 Before: Price AJA Decision: (1) The notice of motion is dismissed.
(2) The applicant is to pay the first respondent’s costs.
Catchwords: CIVIL PROCEDURE – application to vacate hearing date – no question of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 66
Supreme Court Act 1970 (NSW), ss 46, 121
Uniform Civil Procedure Rules 2005 (NSW), rr 49.19, 51.59
Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Bi v Mourad [2010] NSWCA 17
Charlton v National Australia Bank Ltd [2020] NSWCA 237
Cockburn v GIO Finance Ltd [2001] NSWCA 155
Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
Nguyen v Nguyen [2021] NSWCA 161
O’Hare v Bradfield Bentley Pty Ltd (in liq) [2019] NSWCA 122
Richards v Cornford (No 3) [2010] NSWCA 134
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Zheng v Australian International Aviation College Pty Ltd [2024] NSWSC 1622
Category: Procedural rulings Parties: Australian International Aviation College Pty Ltd (Applicant)
Shenglong Zheng (First Respondent)
Canaan Lawyers Pty Ltd (Second Respondent) (submitting appearance)Representation: Counsel:
Solicitors:
M Kalyk (Applicant)
I Harvey (First Respondent)
GSG Legal (Applicant)
Vector Legal (First Respondent)
Moray & Agnew (Second Respondent)
File Number(s): 2025/90612 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Date of Decision:
- 4 August 2025
- Before:
- Court of Appeal Registrar
EX TEMPORE JUDGMENT
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PRICE AJA: By notice of motion filed on 11 August 2025, the applicant, Australian International Aviation College Pty Ltd, seeks relevantly the following orders:
“1 An order pursuant to Section 66(1) of the Civil Procedure Act 2005 (NSW) and/or pursuant to the Court’s inherent jurisdiction that the hearing of the [a]pplicant’s leave application and appeal listed to be heard concurrently on Thursday, 25 September 2025 with a one-day estimate be vacated.
2 An order that the concurrent hearing of the [a]pplicant’s leave application and appeal be adjourned and re-listed to a date not earlier than Tuesday, 18 November 2025.
3 An order that the orders of Registrar Onisforou made on Monday, 4 August 2025 be varied to accord with the re-listed concurrent hearing date of the [a]pplicant’s leave application and appeal.
…”
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The applicant’s motion complains of the case management orders made by the Court of Appeal Registrar on 4 August 2025, in relation to the applicant’s appeal proceedings commenced by way of summons seeking leave to appeal filed on 26 June 2025. The applicant’s primary complaint is of Order 6 made by the Registrar, which is an order fixing the appeal for concurrent hearing before the Court of Appeal on 25 September 2025 and is in the following terms “[l]isted for Concurrent Hearing on 25 September 2025 with an estimate of one day”.
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The principal relief sought in the applicant’s motion is to vary the Registrar’s orders in particular to vacate the hearing date of the appeal currently listed on 25 September 2025 and subsequently re-list the hearing of the appeal around 2 months later on a date after 18 November 2025.
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Order 1 of the applicant’s motion seeks to invoke the Court’s power to vacate the hearing date either pursuant to s 66 of the Civil Procedure Act 2005 (NSW) or by exercising its inherent jurisdiction (or potentially more generally pursuant to s 46(2) of the Supreme Court Act 1970 (NSW)). As the application was not argued by the parties on the basis of a review of a registrar’s decision or order under s 121(3) of the Supreme Court Act and rr 49.19(1), 51.59 of the Uniform Civil Procedure Rules 2005 (NSW), I have not treated the application as being made under those provisions: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [4]-[10] (Hodgson JA, Ipp JA agreeing), [52]-[53] (Basten JA); See also Charlton v National Australia Bank Ltd [2020] NSWCA 237.
Background
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It is unnecessary for the purposes of the determination of the applicant’s motion to provide a detailed factual background of the matter and my reasons today assume familiarity with Garling J’s interlocutory judgment in Zheng v Australian International Aviation College Pty Ltd [2024] NSWSC 1622 (“primary judgment”).
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However, it should be mentioned that the underlying proceedings of the primary judgment involves an action for damages by the first respondent, Shenglong Zheng, for personal injury alleging negligence by the applicant arising from an aircraft accident which occurred around 8 years ago in September 2017. The first respondent commenced the proceedings for damages in 2021, which have now been on foot for over 4 years and will be subject to a further delay pending the determination of the applicant’s appeal.
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The second respondent, Canaan Lawyers Pty Ltd, has filed a submitting appearance and has not taken an active role in these proceedings.
The motion
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The applicant’s motion is supported by an affidavit from its solicitor, Mark Gray-Spencer, sworn 11 August 2025, and a further affidavit filed by Mr Gray-Spencer dated 15 August 2025. In the affidavits, Mr Gray-Spencer explains that the reason behind the applicant’s application to vacate the hearing is because a mediation is scheduled between all the parties on 28 October 2025, with Mr Anthony Black SC to be the mediator. The date of the mediation has been selected in October 2025 because of the unavailability of the solicitors of the applicant and second respondent as they are on leave during September 2025. The applicant’s solicitor appropriately states that the Registrar was not informed about the scheduled mediation during the directions hearing on 4 August 2025.
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The applicant relies on ss 56, 57 and 58 of the Civil Procedure Act and submits that as the mediation may lead to a settlement, vacating the hearing date accords with the dictates of justice and facilitates the just, quick and cheap resolution of the real issues in the proceedings.
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The first respondent opposes the applicant’s motion to vacate the hearing date. The first respondent contends that the proceedings have already been considerably delayed and that the hearing of the appeal, in which there is a real likelihood that the parties will receive a judgment in advance of the scheduled mediation, is likely to assist the parties in narrowing down the issues at the mediation. Furthermore, in the affidavit filed by the first respondent’s solicitor, Bradley Hayward, dated 14 August 2025, it appears that Mr Hayward has taken steps to identify potential available dates in September 2025 in which a mediation can take place before the hearing of the appeal.
Relevant principles
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The principles applicable to the operation of ss 56-58 of the Civil Procedure Act are well known and I do not propose to repeat what has been said in the relevant authorities: See, eg, Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [25] (French CJ), [98]-[102], [113]-[114] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [36] (Allsop ACJ, Campbell and Young JJA agreeing); Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265; [2009] NSWCA 372 at [28]-[30] (Basten JA), [93] (Sackville AJA, Tobias JA agreeing) (“Halpin”); Bi v Mourad [2010] NSWCA 17 at [47] (Allsop P) (“Mourad”); Richards v Cornford (No 3) [2010] NSWCA 134 at [98]-[110] (Allsop P, McColl and Basten JJA agreeing) (“Richards”). See also, Cockburn v GIO Finance Ltd [2001] NSWCA 155 at [6]-[9] (Mason P).
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As the authorities make clear, it is necessary to bear in mind the overriding purpose to ensure that litigation is resolved in a timely fashion and although that often involves the resolution of conflicting tensions between speed (including the avoidance of delay), reduction of costs and the proper consideration of the issues raised by the parties, it has been however emphasised by this Court on a number of occasions that the “parties cannot determine the management of their own cases in their own way and at their own speed” and that “the timely disposition of litigation is central to the provision of justice”: Halpin at [28]-[30]; Richards at [106] quoting Mourad at [47]; See also, Nguyen v Nguyen [2021] NSWCA 161 at [15] (Bell P and Meagher JA) referring to O’Hare v Bradfield Bentley Pty Ltd (in liq) [2019] NSWCA 122 at [34] (Gleeson JA).
Determination
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I am not persuaded by the applicant’s argument that the hearing of the appeal before the mediation will jeopardise a successful outcome. In my view, it is likely to increase the prospects of a resolution by making it clear whether the AIAC report and any other expert report is admissible.
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In any event, the first respondent has identified a number of mediators each of whom are available and willing to assist the parties with the conduct of the mediation before 25 September 2025.
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It appears from the letter dated 14 August 2025, being Annexure C to Mr Gray-Spencer’s affidavit dated 15 August 2025, that Mr Gray-Spencer is unavailable to attend a mediation on any of the dates from 17 September 2025. Mr Hayward in his letter dated 13 August 2025, being Annexure A to Mr Gray-Spencer’s affidavit, identifies many dates which are available with Jeffrey Phillips SC, Robert Angyal SC, Calvin (Jak) Callaway, all respected mediators before 17 September 2025.
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Furthermore, I do not agree that there will be no meaningful prejudice to the parties if the application is granted. Eight years have elapsed since the first respondent suffered his serious injuries. He is entitled to have the applicant’s appeal determined without delay. The Court of Appeal is available to hear the appeal on 25 September 2025 which ensures that the present contentious issue will be dealt with in a timely and efficient manner.
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In my view, the overriding purpose of the Civil Procedure Act (s 56), the objects of case management (s 57), the elimination of delay (s 59) and the dictates of justice (s 58) all point to the concurrent hearing being heard on 25 September 2025: Civil Procedure Act ss 56-59.
Orders
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Accordingly, I make the following orders:
The applicant’s notice of motion is dismissed.
The applicant is to pay the first respondent’s costs.
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Decision last updated: 18 August 2025
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