Queanbeyan City Council v Precast Concrete Solutions Pty Ltd

[2007] NSWLEC 701

Land and Environment Court

of New South Wales

CITATION:	Queanbeyan City Council v Precast Concrete Solutions Pty Ltd [2007] NSWLEC 701
PARTIES:	APPLICANT: Queanbeyan City Council RESPONDENT: Precast Concrete Solutions Pty Ltd
FILE NUMBER(S):	41110 of 2006
CORAM:	Biscoe J
KEY ISSUES:	Practice and Procedure :- whether late application to vacate hearing dates because of unavailability of key witness should be granted where applicant failed to make necessary arrangements for witness to attend
DATES OF HEARING:	5 October 2007
EX TEMPORE JUDGMENT DATE:	5 October 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr T To, barrister SOLICITORS: Baker Deane & Nutt Solicitors RESPONDENT: Mr P R Clay, barrister SOLICITORS: Meyer Vandenberg Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

5 October 2007

41110 of 2006

QUEANBEYAN CITY COUNCIL v PRECAST CONCRETE SOLUTIONS PTY LIMITED

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a motion by the applicant to vacate the dates for the hearing of this matter next week, on 8 and 9 October 2007. The reason is that the applicant’s principal witness and employee Ms Natasha Abbott is on leave and is not returning to work until 18 October 2007.

2 The proceedings involve a contempt of court charge brought by the applicant, the Queanbeyan City Council, against the respondent, Precast Concrete Solutions Pty Limited. The orders sought include, in the alternative, that an officer of the respondent be committed to a correctional centre. The respondent has pleaded guilty in part, and not guilty in part, to the charge.

3 As far as I can ascertain, based more on what I have been told from the bar table than the affidavit evidence, the reason that Ms Abbott is not available for the hearing but is on leave is because the applicant council, having been informed by its solicitors of the hearing dates, did not make the necessary arrangements for her to attend.

4 It is a serious matter for a party if it does not make proper arrangements for a witness to attend court on the date fixed for hearing. A party that does not protect its position by the issue of a subpoena to attend will find itself in a vulnerable position on an application such as this because it has failed to ensure, so far as it can, that the witness will attend. Furthermore, other litigants are disadvantaged and the efficient disposal of Court’s lists is disrupted when hearing dates are vacated late because the dates are unlikely to be filled at short notice by other litigants waiting for their cases to be heard.

5 It should be clearly understood that applications to vacate hearing dates in circumstances such as those in the present case will not simply be rubber stamped by the Court. The Court should receive a full explanation on affidavit as to the reasons – a fuller explanation than was given by affidavit in the present case.

6 The respondent does not wish to take forensic advantage of the situation and consents to the vacation of the hearing dates. The respondent advances environmental and related reasons why, as it happens, it would be preferable for the hearing dates to be vacated. As I understand it, they are concerned with completion of works ordered by the Court, the non-completion of which constitutes part of the charge. Securing compliance with an order of the Court is, in my view, a relevant consideration in the context of proceedings for contempt based on failure to comply with the order. Having regard to that consideration and the whole of the circumstances, I am prepared to accede to the motion to vacate.

7 Accordingly the Court orders that the hearing dates of 8 and 9 October 2007 be vacated. The parties are to approach the registry forthwith to obtain new hearing dates.