Cockburn & v Gio Finance Ltd

[2001] NSWCA 155

NEW SOUTH WALES COURT OF APPEAL

CITATION:     COCKBURN & ORS v GIO FINANCE LTD [2001]  NSWCA 155

FILE NUMBER(S):
40461/00

HEARING DATE(S): 17 May 2001

JUDGMENT DATE:    17/05/2001

PARTIES:
Craig COCKBURN & 5 Ors v GIO FINANCE LTD

JUDGMENT OF:       Mason P     

LOWER COURT JURISDICTION:    Not Applicable

LOWER COURT FILE NUMBER(S):          Not Applicable

LOWER COURT JUDICIAL OFFICER:       Not Applicable

COUNSEL:

SOLICITORS:
P Moran
J Baird

CATCHWORDS:
Practice and procedure - Court of Appeal - hearing date fixed - consent order to vacate refused - practice to be followed if application to vacate hearing date (D)

LEGISLATION CITED:

DECISION:
Adjournment refused

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40461/00

MASON P

Thursday 17 May 2001

Craig COCKBURN & 5 Ors v  GIO FINANCE LTD

JUDGMENT

1. HIS HONOUR:  On 19 May 2000, Foster JA gave judgment in the Equity Division.  On 11 August 2000, a notice of appeal with appointment was filed.  Written submissions prepared by Senior Counsel were exchanged in December-January.  The matter at issue is a narrow point of law concerning contribution rights as between two defendants each found to have been in breach of a duty towards a plaintiff.

2. On 1 February 2001, the matter was before Registrar Irwin.  Each party was represented by solicitors and the hearing was specially fixed for 24th and 25 May. Although an earlier document indicated a shorter estimate, the registrar was persuaded to fix two days for the hearing of this matter.  A confirmatory notice of listing was sent out on 5 February.  It referred the parties to the relevant procedural rules and the letter stipulated,

   Alterations to the list or adjournments will only be granted in exceptional circumstances.

3. On 11 May 2001, a representative of both parties filed at the registry a Consent Order signed by the solicitors for the parties.  The Order stipulated that by consent the date fixed for hearing of the appeal on 24th and 25 May 2001 be vacated, and that the hearing date of the appeal be fixed by the Court.  There was no covering letter or explanation provided in support of the consent order.  I have been informed this morning that the order was delivered to the Registrar by a clerk representing one of the barristers concerned.  The solicitor for the appellants informs me that he understood that, in light of what passed between the clerk and the Registrar, the hearing date had been vacated there and then.  I can only say at my remove that is not my understanding of the situation but I am certainly not in a position to make any findings of fact as to what did pass between the clerk and the Registrar. 

4. What is clear is that the Registrar, on my instructions, sent a requisition to the parties on 11 May informing them that it would be necessary for them to file an application to vacate the hearing date, that the application should be made by way of notice of motion and that it should not be anticipated that the application would be granted.  Nothing appears to have happened between 11 May and a day or two ago.  The Registrar was then informed, on my understanding, that the reason lying behind the consent order was that the date that had been fixed was not convenient to one or both of counsel.  The matter was listed this morning.

5. The solicitors have appeared before me and have indicated that, whatever may have been the position in the past, their counsel, or alternative counsel, are now in a position to address the appeal on the hearing date.  The date is confirmed and the proposed consent orders will not be made.

6. The Court of Appeal has an extremely crowded docket of cases.  Last year there were 483 active applications filed.  In the main they were notices of appeal with appointment.  They also included summonses.  The Court now operates under tight time standards which reflect its own determination and the public expectation that appeals and other applications in this Court will proceed with dispatch.  It goes without saying that the resources of the Court are limited and that to vacate a hearing date at short notice will mean that it is impossible for alternative matters to be put into the list.  The consequence will be that the body of cases awaiting hearing will be imperceptibly but definitely shifted further down the line due to the fact that a vacated matter will have to come back into the list seeking a later date.

7. I think it vital that the profession understand that the Court list is not a fixture sheet at a suburban golf club in which players can add or remove their names according to their interests at the time.  A fixture is a fixture and it will remain unless it is vacated on proper application and for good cause.  It is not open to the parties to file consent orders or to seek directly or indirectly to have matters taken out of the list simply because it is inconvenient to the counsel originally retained.

8. The proper procedure to be followed is that in the case of a sudden emergency such as a bereavement or an illness, the barrister concerned, and I emphasise barrister concerned, should contact the associate of the presiding judge.  If the presiding judge is not known, then he or she should contact my associate and put the relevant information before the Court at the soonest opportunity.

9. In all other cases, an application to vacate a fixture should be made by writing to the Registrar in which the reasons are clearly and fully stated.  In most cases the Registrar will be able to deal with the matter in light of what has been put before him in the letter.  Sometimes the parties will be informed to proceed by way of notice of motion.  It is vitally important that any application of this nature be made immediately the circumstances giving rise to it, or perceived to give rise to it, occur.  But I do wish to emphasise that the profession must not assume that they can have a matter taken out of the list simply by consent or simply at the convenience of counsel.

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LAST UPDATED:            28/05/2001