Ellis v Marshall

[2006] NSWSC 89

CITATION:	Ellis v Marshall [2006] NSWSC 89
HEARING DATE(S):	24 February 2006
JUDGMENT DATE :	24 February 2006
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
EX TEMPORE JUDGMENT DATE:	02/24/2006
DECISION:	Application declined.
CATCHWORDS:	PROCEDURE - Supreme Court procedure - opposed application to vacate hearing date - basis of application is to enable plaintiff to take overseas holiday arranged after date was allocated - effect of Civil Procedure Act 2005 on such an application
LEGISLATION CITED:	Civil Procedure Act 2005
PARTIES:	Susan Vaughan Ellis - Plaintiff Janette Marshall - Defendant
FILE NUMBER(S):	SC 3719/05
COUNSEL:	G Rundle - Plaintiff B Washington - Defendant
SOLICITORS:	Connah, Steed & Co - Plaintiff FC Bryant Thomas & Co - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

24 FEBRUARY 2006

3719/05 SUSAN VAUGHAN ELLIS v JANETTE MARSHALL

JUDGMENT – Ex Tempore

1 HIS HONOUR: Today application was made by the plaintiff to vacate the hearing date. The hearing date was allocated at the call-over held by the Registrar on 16 November 2005, at which the matter was fixed for hearing on 12 and 13 April 2006, and fixed today for pre-trial directions. On 16 November 2006 Mr Rundle of counsel appeared before the Registrar for the plaintiff.

2 Today, in support of the oral application to vacate the hearing date, the plaintiff has filed, and there has been read, an affidavit where she says that before she was notified of the date allocated by the Court for the hearing, she and her husband had organised a private overseas holiday. She says that she had completed the bookings for air travel and accommodation by 12 December 2005, and had made, by that date, the necessary arrangements with their families to look after their interests in Australia during their absence.

3 The application to vacate the hearing date is opposed.

4 No explanation is proffered as to how it happened that the plaintiff was not informed of the hearing date as soon as it was fixed by the Court on 16 November 2005, or how she came to complete her bookings nearly four weeks after that date.

5 The Civil Procedure Act 2005 contains provisions requiring the Court to take such steps as might be appropriate to achieve the just, cheap and quick resolution of the real issues in the proceedings. Section 57 provides that the sort of matters which can be had regard to in achieving that overriding purpose are the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

6 In the present case, there seems to be simply no good reason at all why the plaintiff was not notified of the date which had been fixed, or went on to complete her bookings long after the date was fixed. Allocation of hearing dates is a fundamental way in which the Court achieves the efficient disposal of its business.

7 In all the circumstances, I decline the application for vacation of the hearing date.

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