Penson v Titan National Pty Limited

[2015] NSWCA 382

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Penson v Titan National Pty Limited [2015] NSWCA 382
Hearing dates:	30 November 2015
Decision date:	30 November 2015
Before:	Leeming JA
Decision:	1. Notice of motion filed 30 November 2015 be dismissed.
Catchwords:	PROCEDURE – application to vacate imminent hearing – application refused
Legislation Cited:	Supreme Court Act 1970 (NSW), s 69
Category:	Procedural and other rulings
Parties:	Shirley Penson (Applicant) Titan National Pty Ltd (First Respondent) Kathryn Wood-Weber (Second Respondent)
Representation:	Applicant in person
File Number(s):	2015/188297
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division – Corporations List Citation: [2015] NSWSC 739 Date of Decision: 12 June 2015 Before: Black J File Number(s): 20143/297134

EX TEMPORE Judgment

1. LEEMING JA: Before me in irregular circumstances is a notice of motion filed earlier today, 30 November 2015. It is accompanied by an affidavit of Ms Penson, who in these proceedings has appeared for herself, dated 29 November 2015.

2. Neither of the respondents who are actively opposing the various proceedings in this Court brought by Ms Penson, Titan National Pty Limited and Ms Catherine Wood-Weber, have appeared today. That is because they were, at best, served by facsimile with some of the documents at some time after 1 o’clock this afternoon. It is now 3.37pm and I have listened to Ms Penson for the better part of an hour.

3. She has, very properly, advised me that the solicitor who for some time has acted for Titan National, Ms Perry, left a message for her shortly before 2.15pm advising that she would not be appearing today.

4. In the circumstances, given that the substantive application is to vacate a hearing set down on Thursday, I have accepted evidence from Ms Penson and heard in some detail from her of the basis of her application, even though it is ex parte.

5. Set down many weeks ago for hearing this coming Thursday are some three proceedings. One is an application for leave to appeal against decisions made by Justice Black in June 2015. Another is an application, purportedly under s 69 of the Supreme Court Act 1970 (NSW), to review decisions made by Ward JA and me in June and July 2015. (At the outset of this hearing, and before I appreciated that the decisions the subject of the hearing on Thursday included two in which I had participated, I asked Ms Penson whether she had any difficulties with me hearing her application for vacation of the hearing, and she, if I may say so, very graciously, indicated that she did not.) The third application listed on Thursday is either an appeal or an application for leave to appeal from a series of judgments of the District Court.

6. The substance of the application before me is that Ms Penson seeks to adjourn the hearing of her various proceedings, all of which are listed before the same bench at the same time, by a period of some two weeks. Two weeks from this Thursday is the second last day of term. The practical reality of the application, if it is successful, is that the various proceedings Ms Penson has brought will not be heard and determined this year.

7. The matters contained in Ms Penson’s affidavit of 29 November 2015 in support are essentially twofold. First of all, she points to, and I accept, the delay on the part of the respondents in supplying materials to her. According to her, submissions that should have been served on 5 November 2015 were, in fact, not served till 10 or perhaps 11 November 2015.

8. In the scheme of things, I do not consider that this delay, although regrettable, comes close to satisfying what is required to shoulder the heavy burden of vacating a hearing date shortly before the hearing. I should add that some of these matters were flagged in correspondence between Ms Penson, the Registrar of this Court and the lawyers for the respondents in emails dated Friday 13 November 2015. However, in that correspondence, Ms Penson sought merely to relist the proceedings, and did not make an application to vacate the hearing dates that were long ago set down.

9. The second substantive matter raised is that Ms Penson says that on Saturday last she received, for the first time, an envelope containing a voluminous amount of materials including a notice of motion filed by the respondents dated 11 November 2015 returnable on 3 December 2015, the date of the appeals.

10. I have seen the notice of motion, but not the materials accompanying it. The notice of motion seeks orders setting aside notices to produce which Ms Penson has earlier issued.

11. Ms Penson has, if I may say so, candidly, told me that she no longer sees any utility in the notices to produce she had formerly issued. She has said that they were returnable before the Court and no response was given and, although I do not have her exact words to hand, I apprehend that she regards the notices to produce as spent.

12. She is, in light of the history of these proceedings, nevertheless concerned that the motion now brought by the respondents seeking to set aside those notices to produce is something that she needs to take seriously and to respond to at the hearing, and that it will take up some time at the hearing.

13. Against this, it must be observed that by an email to Ms Penson dated 23 November 2015, Ms Perry (who acts for the respondents) has advised that:

“We remain of the view that your notices to produce will be set aside and are entirely irrelevant to the proceedings. We take the view that this motion will take no more than 15-20 minutes.”

14. So far as I can see, although the history of these proceedings is, to say the least, complicated, it would seem that Ms Penson regards the notices to produce as spent, Titan regards them as irrelevant and, in any event says that its notice of motion will not unduly disrupt the hearing.

15. I have said the foregoing in the hope that, as I indicated to Ms Penson during the course of this afternoon’s hearing, the reasons that I give (which will be made available to the parties as soon as may possibly be) will further assist the judges hearing the matter on Thursday to (a) understand the basis on which I have refused this application and (b) assess, if it is necessary to do so, whether, as is my present view, the latest bundle of documents sent to Ms Penson does not warrant vacating the hearing date.

16. For those reasons, I am not persuaded to make the orders sought by the notice of motion filed 30 November 2015. The only order I propose to make today is that the notice of motion filed 30 November 2015 be dismissed. There should be no orders for costs because there is nothing before me to suggest that any material costs have been incurred by the other side.

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Decision last updated: 02 December 2015