Campbelltown City Council v WSN Environmental Solutions Pty Ltd

[2015] NSWCA 151

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Campbelltown City Council v WSN Environmental Solutions Pty Ltd [2015] NSWCA 151
Hearing dates:	25 May 2015
Decision date:	25 May 2015
Before:	Leeming JA
Decision:	1. Dismiss the notice of motion filed 14 May 2015. 2. Costs of the notice of motion be costs in the appeal.
Catchwords:	PRACTICE – appeals – expedition – no question of principle
Category:	Procedural and other rulings
Parties:	WSN Environmental Solutions Pty Ltd trading as SITA Australia (Applicant) Campbelltown City Council (1st Respondent) Camden Council (2nd Respondent) Wingecarribee Shire Council (3rd Respondent) Wollondilly Shire Council (4th Respondent)
Representation:	Counsel: G O’Mahoney (Applicant) A Abadee (Respondents) Solicitors: Maddocks (Applicant) Sparke Helmore (Respondents)
File Number(s):	2015/106025
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Citation: [2015] NSWSC 155 Date of Decision: 06 March 2015 Before: Sackar J File Number(s): 2014/371801

EX Tempore Judgment

1. LEEMING JA:  By notice of motion filed 14 May 2015, WSN Environmental Solutions Pty Ltd, the respondent to the appeal, seeks expedition of an appeal which was filed on 22 April 2015. The parties are agreed that the appeal, which is either wholly or principally on a question of construction of a contract between them, can be ready for hearing and heard on 31 August 2015. (There is a possibility of a slightly earlier date as well.) However, WSN would prefer that hearing to take place on 2 July 2015, that is to say some five and a half weeks from now, and has prepared a timetable to that effect. The appellant Councils opposed such earlier date, principally on the basis that they will lose the services of senior counsel who has been retained since the proceedings commenced.

2. The question is, it is common ground, narrow. By the decision of Sackar J given on 6 March 2015, promptly after a one day hearing, in Campbelltown City Council v WSN Environmental Solutions Pty Ltd [2015] NSWSC 155, his Honour determined that one of two dispute mechanisms in the contract between the parties applied to a dispute which had been notified as long ago as 12 September 2013. It is not necessary for present purposes to say much about the nature of the dispute. WSN claims that there has been a material increase in costs incurred by it in providing waste receival and processing services to the appellant and three other local councils. The competing dispute resolution mechanisms in the contract are (a) by way of expert determination or (b) by way of “staged consultation, including involving mediation and ultimately arbitration”.

3. The applicant for expedition, WSN, points to evidence that the material increase in costs which have led to the dispute is substantial. The uncontested evidence is that they are some $359,000 per month. WSN says further that it is losing some $375,000 each month in continuing to perform the contract. It says that these are large amounts of money and that there should be certainty at this preliminary stage in determining the mechanism to resolve the dispute it has initiated. It says that this is a preliminary but important step in what has already been a relatively long dispute between the parties which should be resolved as quickly as possible.

4. I am not minded to order the relatively extreme expedition which WSN seeks. I am of that view for two reasons. The first is that the difficulty to which the Councils point about losing the services of senior counsel, who has been retained since the litigation commenced, is one which is not confined merely to the practicality of finding a replacement in what is obviously important litigation between the parties. If this appeal is to be heard on 2 July, that is to say somewhat less than six weeks from now, it will be necessary for the appellants very rapidly to obtain the services of replacement counsel with a view to finalising the written submissions which will be due, on the timetable proposed by the respondent, on 3 June 2015. It is not unlikely that the Councils will be unable to identify replacement counsel who has enough capacity immediately available to fully contribute to the preparation of their written submissions.

5. If that were the only matter, I would not regard it as determinative. However, the evidence before me is that the dispute was notified in September 2013. There was correspondence between the parties for the succeeding almost 15 months before, on 5 December 2014, the respondent/applicant for expedition purported to refer the dispute to expert determination in accordance with the clause which it favours and which has been determined by Sackar J to be the correct clause. There is no evidence before me as to the losses incurred by WSN during that 15 month period. However, I would infer that, although they may not be as significant as those deposed to at present, they were still substantial.    

6. Following the commencement of proceedings, in which expedition was sought, the court has moved rapidly to get to the stage the litigation is at present, namely an appeal pending from a final determination by a judge in the Equity Division. It is the 15 month period prior to the commencement of proceedings, coupled with what is disclosed in the evidence before me, that the ultimate resolution of the dispute, under whichever mechanism is held to be appropriate, is likely to be “lengthy and complex”, which together persuade me that this is not an appropriate case to give the relatively extreme measure of expedition sought by the respondent to the appeal.    

7. The fact of the matter is that there can be, in an orderly way, without subjecting the appellants to the prejudice of rapidly replacing their senior counsel, a hearing of the appeal on 31 August (or possibly earlier) which is only some 8 weeks after the date proffered by WSN. In the scheme of things, bearing in mind the relatively lengthy delay prior to commencement of proceedings and the likelihood of lengthy delay in the course of determining the dispute between them, I do not think this is an appropriate place to order the expedition sought by the applicant.

8. Accordingly, I propose to dismiss the notice of motion filed 14 May 2015.

9. Do you have anything to say about costs, Mr Abadee, should they be costs of the appeal?

ABADEE: Yes.

HIS HONOUR: In effect, expedition has been granted by 31 August.

ABADEE: Yes.

10. I make these orders:

Order 1 is dismiss the notice of motion filed 14 May 2015.

Order 2:  costs of the notice of motion be costs in the appeal.

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Decision last updated: 29 May 2015