Roads and Maritime Services v Young
[2018] NSWSC 1911
•11 December 2018
Supreme Court
New South Wales
Medium Neutral Citation: Roads and Maritime Services v Young [2018] NSWSC 1911 Hearing dates: 11 December 2018 Date of orders: 11 December 2018 Decision date: 11 December 2018 Jurisdiction: Common Law Before: Rothman J Decision: (1) Direct that the defendant’s unfiled Notice of Motion dated 10 December 2018 and any Affidavit upon which the applicant/defendant, Maureen Mary Young seeks to rely be served on the plaintiff;
(2) No expedition be granted;
(3) The matter be listed before the Duty Judge for direction on 29 January 2019;
(4) Orders to be entered forthwith.Catchwords: PRACTICE AND PROCEDURE – Motion before Duty Judge – appeal from Registrar – no urgency – matter to be dealt with in the ordinary course. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: Roads and Maritime Services (Plaintiff/Respondent)
Maureen Mary Young (Defendant/Applicant)Representation: Solicitors:
No appearance (Plaintiff/Respondent)
Self-represented (Defendant/Applicant)
File Number(s): 2018/83808 Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Date of Decision:
- 6 December 2018
- Before:
- Registrar Bradford
- File Number(s):
- 2018/83808
EX TEMPORE Judgment
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HIS HONOUR: Ms Young, who is self-represented, seeks to appeal an order of the Registrar, who has directed that a Defence be filed by 20 December 2018 and has refused to waive filing fees in relation to same.
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The proceedings are not uncomplicated in that the defendant, Ms Young, filed a Defence and Cross-Claim, some paragraphs of which or the whole of which was struck out by the Court (Wilson J) on 30 November 2018.
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An appeal has been filed in relation to the orders of the Court, issued by Wilson J, and is before the Court of Appeal.
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On questioning, the defendant made it clear that it was unnecessary to have the orders of the Court issue by Registrar Bradford on 6 December 2018 set aside in order for the appeal against the orders issued by Wilson J to be heard and determined.
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Further, the substantive matter relates to a claim by the plaintiff for possession of a site to which is affixed a houseboat. That claim for possession has not been given a hearing date and there is no attempt to execute any writ of possession (if one exists).
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There is no evidence before the Court upon which the Court could base a claim for waiver of fees in relation to the Notice of Motion sought to be filed today. Nevertheless, the Court orders that the Motion be served on the plaintiff in accordance with the rules.
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No application is made to the Court, as presently constituted, for the waiver of fees for the filing of the motion and none is granted.
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Ultimately, the matter has come before the Duty Judge because the applicant on the putative motion has approached the Duty Judge, while sitting, sought leave to file in Court the Motion, notice of which has not yet been filed and appeal the decision of the Registrar to which earlier reference has been made.
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Procedural fairness requires, except, relevantly, in the case of an urgent application, that parties to proceedings be notified of any application and be given a reasonable opportunity to prepare and to present a case in favour or against any such application. No such opportunity has been given to the plaintiff.
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No urgency has been shown in relation to the application. There is no chance that, pending the appeal to the Court of Appeal, the applicant on the Motion, Ms Young, can be dispossessed of the houseboat or the site, unless the Court is moved by some application to make orders of that kind.
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As to the filing of the Defence on 20 December 2018, the orders of the Registrar require the performing an act in a period that will have expired by the time the matter is heard in the ordinary list. Nevertheless, the Court is in a position of being able to vary such an order nunc pro tunc, without prejudice to the applicant/defendant.
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The claim of the applicant/defendant is that the Registrar should not have made orders for the doing of an act in a time while the appeal is pending. An appeal to the Court of Appeal does not act as a stay. If a stay is to be sought, there must be an application in accordance with the rules, by Motion, on notice, with an accompanying Affidavit setting out the prejudice.
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Further, the claim of the applicant from the Bar table that the Registrar refused to waive or remit the payment of a fee for the filing of Defence is, on its face, difficult to comprehend. As I understand the rules contained in the Uniform Civil Procedure Rules 2005 (NSW), no fee is payable for the filing of a Defence.
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If the waiver is to the filing of the Motion upon which the applicant seeks to rely before the Court presently, then, as earlier stated, no material in the form of an Affidavit has been submitted as to the resources of the applicant/defendant.
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Further, there is no urgency associated with that filing and no necessity to have the appeal against the orders of Registrar Bradford heard and determined before the proceedings in the Court of Appeal.
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In all of the circumstances, and notwithstanding that the Motion for the appeal has not been filed, it is appropriate to inform the plaintiff of the terms of the Motion and notice and the terms of any Affidavit, upon which the applicant/defendant intends to rely. The matter will be listed in the ordinary course and it is for the Duty Judge at that time to determine whether, on the material before the Court, the fee should be waived and what, if any, orders ought otherwise be made.
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The Court makes the following orders
Direct that the defendant’s unfiled Notice of Motion dated 10 December 2018 and any Affidavit upon which the applicant/defendant, Maureen Mary Young seeks to rely be served on the plaintiff;
No expedition be granted;
The matter be listed before the Duty Judge for direction on 29 January 2019;
Orders to be entered forthwith.
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Decision last updated: 11 December 2018
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