Paul John Smithson v National Australia Bank

[2011] NSWSC 312

Supreme Court

New South Wales

Medium Neutral Citation:	Paul John Smithson & Ors v National Australia Bank & Anor [2011] NSWSC 312
Hearing dates:	8 April 2011
Decision date:	08 April 2011
Jurisdiction:	Equity Division
Before:	Pembroke J
Decision:	See paragraph [5]
Catchwords:	EXPEDITION LIST - principles and practice - more demanding standards - revocation of expedition - vacation of hearing dates
Category:	Procedural and other rulings
Parties:	Paul John Smithson - first plaintiff Yatala Qld Pty Limited - second plaintiff Eveleigh Pty Limited - third plaintiff ISH Investments Pty Limited - fourth plaintiff Loganlea Developments Pty Limited - fifth plaintiff FCH Group Pty Limited - sixth plaintiff Dissan Pty Limited - seventh plaintiff Marine Group Pty Limited - eighth plaintiff National Australia Bank Limited - first defendant Morgan Kelly & William Colwell of Ferrier Hodgson - second defendant
Representation:	Counsel: M S Jacobs QC with S Jacobs - for the plaintiffs J Stoljar SC with D Price for the defendants Solicitors: GWM Lawyers - for the plaintiffs DibbsBarker Lawyers - for the defendants
File Number(s):	2010/00423497

EX TEMPORE Judgment

1. It is important for the profession to recognise that the expedition list is run for the benefit of all litigants in this Division of the Court who can justify the requirement for urgency. The conduct of the list necessarily requires the Court's constant re-assessment and re-balancing of the competing claims for urgent hearings by an ever-widening group of litigants. The necessity of taking that approach means that, depending upon the nature and number of competing urgent claims, it is sometimes necessary to take a strict approach to defaults by parties in complying with timetables set by the Court. It also means that, if through no fault of any particular party, time estimates prove to be inaccurate or optimistic, the parties may forfeit the preferential dates that have been allotted to them.

1. In this respect, the conduct of proceedings in the expedition list differs from the conduct of proceedings in the general list. The expedition judge takes a less generous, and more demanding, approach to delay or obfuscation, inaccurate estimates of hearing time, or incompetence in the preparation of the case for hearing. The consequence is that circumstances may all too frequently arise when expedition will be revoked, the hearing date vacated and the parties' priority forfeited.

1. I am afraid to say that this is one of those cases. It is listed for hearing in the week commencing 18 April 2011. I am now quite satisfied that the three days allocated will be insufficient to conclude the hearing. I am also satisfied that, given the volume of documents that have now been produced, the defendants' affidavits and expert reports that have now been served, and the timing which has attended the service and production of that material, the plaintiffs' senior counsel will not be in a position to present the plaintiffs' case with the care and attention to detail that he is reasonably entitled to expect. I am also entitled reluctantly, but necessarily, to take account of the speed at which the plaintiffs' senior counsel may be expected to conduct his case.

1. There is no need to find fault on the part of anyone. The defendants have not complied with the timetable but that is not the only consideration. The fact is that despite the parties' best intentions, as well as encouragement from me, the original expectation of being able to conclude the case within three days is unachievable. If the case commenced and became part-heard after three days, it could not be resumed for some months. That will result in duplication and increased cost. A far better outcome, particularly having regard to the interests of the wider body of litigants in this Court, is to give the dates allocated to this case to other genuinely urgent proceedings which are ready to proceed, properly prepared, and tightly confined. That is especially so when the parties in this case have both agreed that a conclave of experts should take place. It is all the more so because the plaintiffs have sensibly suggested that I order a compulsory mediation. I will do so and will require it to take place at the time the hearing in this Court was scheduled to commence.

1. I propose to vacate the current hearing dates, order a conclave of experts and order a mediation over two days during the period 18-21 April 2011. Agreed short minutes should be sent to my associate reflecting those proposed orders. I do not propose to make any costs orders consequent on the vacation of the hearing date. The matter should only be listed before me again if the mediation is unsuccessful.

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Decision last updated: 15 April 2011