Ceccattini and 1 Ors v ICM 2000 P/L and 1 Ors

[2000] NSWSC 174

CITATION:	Ceccattini & 1 Ors v ICM 2000 P/L & 1 Ors [2000] NSWSC 174
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 2696/97
HEARING DATE(S):	10/03/00
JUDGMENT DATE:	10 March 2000
PARTIES :	Gualtiero Ceccattini (First Plaintiff) (First Plaintiff) Emilio de Michelis (Second Plaintiff) ICM 2000 Pty Limited (ACN 072 573 785) (First Defendant) Westpac Industries Pty Limited (ACN 069 592 034) (Second Defendant)
JUDGMENT OF:	Santow J

COUNSEL :	D Warren (Plaintiffs) W Haffenden (Defendants)
SOLICITORS:	Lapaine Pomare & Forster (Plaintiffs) Smits Leslie (Defendants)
CATCHWORDS:	PRACTICE AND PROCEDURE — Overriding purpose of "just, quick and cheap" resolution of civil disputes — Effect of Plaintiffs’ delay inter alia in lodging application for leave to appeal on trial judge’s interlocutory orders — Stay refused without prejudice to application to Court of Appeal who will know prospects of leave and timetable for appeal — No justification for even short stay when application made at last minute.
DECISION:	Stay not granted.

REVISED — 17 March, 2000
IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITY

SANTOW J

No. 2696/97
GUALTIERO CECCATTINI
First Plaintiff
EMILIO de MICHELIS
Second Plaintiff
ICM2000 PTY LTD (ACN 072 573 785)
First Defendant
WESTPAC INDUSTRIES PTY LIMITED (ACN 069 592 034)
Second Defendant
JUDGMENT

10 March 2000 1 HIS HONOUR: By a belated notice of motion dated 9 March, filed 9 March 2000 on the part of the plaintiff, in circumstances where that matter could have been filed in early February, a stay is sought to my earlier orders. 2 Those earlier orders essentially required a further hearing before the referee, already appointed, on 20 March 2000, and the referee to report to the Court by 27 March 2000. 3 That occurs against a background where, as my earlier judgment of 8 December 1999 describes, the referee denied procedural fairness to the Plaintiffs. I concluded that the circumstances were not however such as to give rise to a reasonable apprehension of bias, or based on prejudgment or otherwise. 4 In reaching that conclusion I was conscious of the fact that the consequences of that procedural unfairness could be dealt with by the procedure I had laid down. 5 There has been a long history of delay in this matter, principally on the part of the Plaintiffs. That was not denied. The overriding purpose of the Supreme Court Rules in their application in civil proceedings has been recently re-emphasised. It is, according to Supreme Court Rules 3(1) in force since 28 January 2000, "to facilitate the just, quick and cheap resolution of the real issues in such proceedings." 6 The present unfortunate sequence of events is an affront to that purpose. Instead of the referral to the referee expediting matters and reducing costs, this matter has drifted for two and a half years, and there is still no end to the finalising of the valuation which the referee was required to do. While the referee in some small part contributed to that delay, though not deliberately, it is fundamentally the result of the Plaintiffs’ background of adversariality that has distinguished these proceedings. 7 The purpose of my order was to ensure that the valuation finally is completed without further delay. The Plaintiffs seek to delay that process pending an appeal to the Court of Appeal, which requires leave, given the interlocutory character of my earlier decision arising as it does in the Court’s supervision of the referral process. 8 If leave to appeal is granted and successfully pursued by the Plaintiffs, unless a stay were granted, that further hearing before the referee which my earlier orders contemplate would then be rendered nugatory. 9 However, it does not follow that I should on this last minute application for a stay myself stay my orders rather than leaving that to the Court of Appeal to consider. Only the Court of Appeal knows whether it will grant leave, and if it does, whether it will also grant expedition; that is to say the likely timetable is entirely in the hands of the Court of Appeal. Even a short stay would now frustrate the dates set down in less than two weeks before the referee, when a timely application for a stay would have avoided that. 10 In those circumstances the Plaintiffs, who could have lodged their notice of motion in a timely fashion, but neglected to do so, must take their chance and apply to the Court of Appeal for a stay, if such they wish to do. 11 I investigated the possibility of granting a very short extension of the time for the referee to report so as to permit a corresponding extension of the time for the Plaintiffs to approach the Court of Appeal urgently. That did not prove feasible. First, the referee could not be contacted to-day and to permit further delay and another hearing before me is quite unfair to the Defendant. Second, why should the Court of Appeal have to inconvenience other parties before it, to deal with the Plaintiffs’ application with such urgency, when it is the Plaintiffs’ own fault that the urgency is required. 12 Had the Plaintiffs applied in a more timely fashion for a stay, the end result would have been that the timetable set by my orders could have been met with an intervening application to the Court of Appeal for leave back in February. If that application to stay my orders had been accompanied by an application for leave to appeal, it is possible that the Court of Appeal might have accommodated the Plaintiffs by dealing with both matters together. That now this is less likely is hardly the fault of the defendants. 13 In all of the circumstances, I have concluded that I will not grant the stay sought. This is, of course, without prejudice to any application for a stay the Plaintiffs may wish to make to the Court of Appeal. The Court of Appeal will know in what circumstances that application is made, including whether leave to appeal will be granted and the likely timetable if it is and will have my judgment before it. 14 As to the costs of the notice of motion before me, these should follow the event, and be awarded on an indemnity basis against the Plaintiffs and should be payable forthwith.
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Last Modified: 09/25/2000