Howarth v Gosford City Council

[2012] NSWLEC 126

Land and Environment Court

New South Wales

Medium Neutral Citation:	Howarth v Gosford City Council [2012] NSWLEC 126
Hearing dates:	1 June 2012
Decision date:	01 June 2012
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	Hearing date vacated: see para [12]
Catchwords:	PRACTICE AND PROCEDURE: notice of motion to vacate - non-compliance with timetable - failure to exercise liberty to restore - hearing vacated
Legislation Cited:	Civil Procedure Act 2005 s 56
Cases Cited:	Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Category:	Procedural and other rulings
Parties:	Russell Howarth (First Applicant) Cherie Reid (Second Applicant) Gosford City Council (Respondent)
Representation:	Mr D Wilson (First and Second Applicant) Ms S Ross (Solicitor) (Respondent) Swaab Attorneys (First and Second Applicant) PJ Donnellan & Co (Respondent)
File Number(s):	40221 of 2012

EX TEMPORE Judgment

The Parties Apply to Having the Hearing Date Vacated

1. By notice of motion filed in Court on 1 June 2012 and returnable instanter, the applicants move the Court for a direction that the hearing of the matter listed on 20 June 2012 be vacated. The orders are sought by consent.

1. The matter was set down for hearing on the second occasion it was before the Court on 5 April 2012, with the consent of both parties.

1. On that day, Craig J made orders for the parties to file their respective pleadings and evidence, and to generally prepare the matter for hearing.

1. Relevantly, orders 11 and 12 were as follows:

11. Parties are to notify promptly the Court if there is any material slippage in the timetable.

12. The parties have liberty to restore on three working days' notice.

1. As was candidly admitted by Mr Dennis Wilson, appearing on behalf of the applicants, no part of the orders made by Craig J on 5 April 2012 have been complied with by any party.

1. The purported explanation as to why there has been a complete want of preparation of the matter by the parties is contained in an affidavit of Mr Tean Kerr, the solicitor for the applicants, affirmed 31 May 2012. In short, first, on 11 April 2012 the applicants were served with a large number of documents pursuant to an informal discovery arrangement between the parties; and second, nothing was done while informal settlement negotiations took place between the parties from 18 April to 8 May 2012.

1. Leaving aside the manifest inadequacy of this explanation, the parties offer no reason why, after 8 May 2012, there was no approach to the Court pursuant to orders 11 and 12 set out above, to inform it that the timetable had not been complied with and that there was a real possibility that the hearing date might need to be vacated.

1. Instead, the parties have chosen to wait until today (the date for the next directions hearing ordered by Craig J on 5 April 2012) to bring the slippage in the timetable to the Court's attention. This conduct is grossly unsatisfactory. The Court was initially minded to dismiss the proceedings for want of prosecution, however, it is unlikely that this would facilitate the overriding purpose of litigation contained in s 56 of the Civil Procedure Act 2005.

1. The parties now assure the Court that the matter is being prepared for hearing. A further timetable has been proffered to the Court in this regard.

1. One of the orders sought in the proposed timetable is that the matter be relisted for hearing. This will not occur until the parties satisfy the Court that the pleadings are closed and that all of the evidence upon which they seek to rely has been filed and served. This will result in the parties having to incur additional costs by appearing before the Court again prior to the allocation of another hearing date. So be it. This is the price the parties must pay for their dilatory conduct, which has resulted in the Court's limited resources being wasted.

1. The respondent does not seek its costs thrown away occasioned by the vacation of the hearing. Because the purpose of an award of costs is to compensate and not punish (Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534), no award of costs is therefore made.

Orders

1. The Court makes the orders in paragraphs 2 to 6 of the notice of motion. Liberty to restore on three days' notice is also granted to the parties. The Court expects this liberty to be exercised if either party causes a material slippage of the timetable.

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