Curtin v University of New South Wales (No. 1)

[2008] NSWSC 1234

CITATION:	Curtin v University of New South Wales (No. 1) [2008] NSWSC 1234
HEARING DATE(S):	4 September 2008
JUDGMENT DATE :	4 September 2008
JUDGMENT OF:	Johnson J at 1
EX TEMPORE JUDGMENT DATE:	4 September 2008
DECISION:	Application for adjournment is refused.
CATCHWORDS:	PRACTICE AND PROCEDURE - Plaintiff amends pleading after Associate Judge summarily dismisses several pleaded claims - Court hears application to strike out amended pleadings - judgement reserved - application made for Court to defer giving reasons and to adjourn proceedings - Plaintiff now wishes to appeal from decision of Associate Judge - Court declines to defer delivery of reasons on strike-out application - adjournment refused
LEGISLATION CITED:	Fair Trading Act 1987 Trade Practices Act 1974 (Cth) Civil Procedure Act 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Curtin v University of New South Wales [2008] NSWSC 586
PARTIES:	Peter John Curtin (Plaintiff) University of New South Wales (First Defendant) New South Wales Global Pty Limited (Second Defendant) John Ingleson (Third Defendant) Alan Bowen-James (Fourth Defendant)
FILE NUMBER(S):	SC 20342/07
COUNSEL:	MR PE King (Plaintiff) Ms SI Bennett (Solicitor) (First, Second and Third Defendants)
SOLICITORS:	Russell McLelland Brown (Plaintiff) Sparke Helmore (First, Second and Third Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

4 September 2008

20342/07 Peter John Curtin v University of New South Wales and Ors (No. 1)

JUDGMENT

1 JOHNSON J: On 1 September 2008, I heard a Notice of Motion filed on behalf of the First, Second and Third Defendants (“the Defendants”) seeking orders that either leave to amend the Plaintiff’s Statement of Claim with respect to certain paragraphs be revoked, or that those paragraphs be struck out. The hearing of the Notice of Motion came before me on 1 September 2008 as Duty Judge, although the matter had been given a listing in the Progressive List.

2 It is necessary for the purpose of dealing with the present application for adjournment by the Plaintiff, to recite a number of facts. On 13 June 2008, Malpass AsJ delivered judgment which included orders, amongst others, dismissing claims brought by the Plaintiff under the Fair Trading Act 1987 and the Trade Practices Act 1974 (Cth): Curtin v University of New South Wales [2008] NSWSC 586. Thereafter, an Amended Statement of Claim was filed which contained claims against the Defendants under those two Acts.

3 The Defendants filed a Notice of Motion dated 31 July 2008 seeking to strike out, as I have said, parts of the Amended Statement of Claim or to revoke leave to amend. That matter came before me on 1 September 2008 and was argued at considerable length by senior and junior counsel for the Defendants and counsel for the Plaintiff.

4 At the conclusion of the hearing, which occupied some two and a half hours, I adjourned the matter until 10.00 am today for the purpose of giving oral judgment. Yesterday, my Associate was informed that the Plaintiff wished to make an application today that I defer giving my reasons. This morning Mr King, counsel for the Plaintiff, has advanced what is, in effect, an application for adjournment.

5 This morning, the Plaintiff filed a Notice of Motion seeking an order extending time to appeal against the decision of Malpass AsJ of 13 June 2008. It is submitted for the Plaintiff that I should adjourn so that the hearing of the Plaintiff’s application for leave to appeal from the decision of Malpass AsJ can be considered by me in conjunction with the matters argued on Monday.

6 I note that, despite the time between the filing of the Defendants’ Notice of Motion and the hearing on Monday and the length of that hearing, there was no mention at any stage that the Plaintiff may wish to appeal from the decision of Malpass AsJ. This was despite the fact that it was abundantly clear in the written submissions, and in the subject matter of the motion itself, that Malpass AsJ’s decision was a necessary starting point for the arguments that were being advanced.

7 The Defendants oppose the adjournment application and submit that I should proceed to give my judgment on the matter argued on Monday.

8 Mr King has invoked s.56 Civil Procedure Act 2005. He submits that the just, quick and cheap resolution of the real issues in the proceedings will be advanced by deferring my ruling and putting in train a protocol for a hearing, whether by way of written submissions or a further oral hearing, so that I can consider, assuming there is an extension of time granted to appeal from the decision of Malpass AsJ, all issues at the one time.

9 It is difficult to understand how the Plaintiff could have only come to consider, as Mr King assures me is the case, the bringing of an appeal from the decision of Malpass AsJ since the hearing on 1 September 2008. The time to appeal as of right expired in mid-July. If the Plaintiff was complying with his obligation under s.56 Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of all issues in dispute, then the step that is now taken would have been taken prior to the hearing last Monday.

10 If that had happened, there may well have been a real question as to whether the hearing would have proceeded at all before me, sitting as Duty Judge and dealing with matters with a two-hour limit, although, as I have observed, the hearing of this matter exceeded that length. It seems to me that s.56 Civil Procedure Act 2005 does not, at this point, assist the Plaintiff but rather points in favour of me proceeding to give judgment on the matter for decision.

11 I have mentioned to Mr King that, apart from the fact that this matter came before me in the way it did this week and that I am in a position to give judgment on the arguments advanced, I will not be sitting in the Civil List of the Common Law Division again this year.

12 What the Plaintiff, in effect, seeks is that the whole application be deferred to allow, perhaps in the first instance, a contested application for leave to appeal and then, if leave was granted, for those issues to be rolled up, with there being some further hearing before me, no doubt a combination of written and oral argument, at some point during the course of a criminal trial or my duties in the Court of Criminal Appeal. I do not think that is consistent with s.56 Civil Procedure Act 2005 nor, indeed, the general obligations of the Court to other litigants.

13 I do not propose to adjourn the giving of reasons on the matter argued before me last Monday. It will be a matter for the Plaintiff to take such course as he sees fit. I am not persuaded that I should exercise my discretion to adjourn on the basis advanced by the Plaintiff.

14 The application for adjournment is refused.

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