Transport for NSW v Boensch

[2023] NSWSC 1200

Supreme Court

New South Wales

Medium Neutral Citation:

Transport for NSW v Boensch [2023] NSWSC 1200

Hearing dates:

05 September 2023

Date of orders:

05 September 2023

Decision date:

05 September 2023

Jurisdiction:

Equity - Real Property List

Before:

McGrath J

Decision:

Adjournment refused

Catchwords:

PRACTICE AND PROCEDURE — application for adjournment — whether the Court Book was provided to the first defendant with sufficient time for him to adequately prepare for the hearing — in circumstances where the delay in preparing the Court Book was due in part to the voluminous affidavit material requested to be included in it by the first defendant and where the material to be included in the Court Book was at all times in the possession of the first defendant — HELD — no injustice occasioned to the first defendant — application refused

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural rulings

Parties:

Transport for NSW (ACN 18 804 239 602) (Plaintiff)
Franz Boensch (First Defendant)
Go Green Systems Pty Ltd (ACN 115 997 192) (The Second Defendant)

Representation:

Counsel:
G Keesing (Plaintiff/Cross-Defendant)
F Boensch (Self-Represented) (Defendant/Cross-Claimant)

Solicitors:
Holding Redlich (Plaintiff/Cross-Defendant)

File Number(s):

2021/00186631

Publication restriction:

Nil

EX TEMPORE JUDGMENT (revised)

1. Before me this morning for hearing are two notices of motion, one filed 26 May 2023 and the other filed 14 July 2023, by the plaintiff who is also the cross-defendant in the proceedings.

2. The plaintiff/cross-defendant is represented by counsel, Ms G Keesing.

3. The first defendant/cross-claimant is self-represented.

4. The second defendant is playing no active part in the proceedings.

5. The notice of motion filed 26 May 2023 seeks orders setting aside in part a notice to produce issued by the first defendant/cross-claimant to the plaintiff/cross-defendant on 4 May 2023.

6. The notice of motion filed 14 July 2023 seeks orders summarily dismissing the first defendant/cross-claimant’s cross-claim filed 15 September 2021 or alternatively permanently staying or striking it out.

7. In support of the motions, the plaintiff/cross-defendant has indicated that it intends to rely on an affidavit of Millie Josephine Clayton affirmed 26 May 2023 and two affidavits of Bede Haynes, one affirmed 30 June 2023 and the other affirmed 14 July 2023 and the exhibits to those affidavits. Each of these affidavits and their exhibits were served on the first defendant/cross-claimant shortly after they were made.

8. In opposition to the motions, the first defendant/cross-claimant has indicated that he intends to rely on an affidavit sworn by him on 19 June 2023, an amended form of the affidavit sworn by him on 19 June 2023, an affidavit sworn by him on 27 July 2023, an affidavit sworn by him on 15 September 2021, an affidavit sworn by him on 2 March 2022, an affidavit sworn by him on 27 October 2022, an affidavit sworn by him on 5 July 2023 and exhibits to those affidavits. In addition, the first defendant/cross-claimant has indicated that he also intends to rely on some further materials contained in a folder that includes written submissions made by him dated 21 March 2022 and 27 October 2022, and an affidavit of Robert Gordon Harrison sworn 20 October 2022 and an exhibit to that affidavit.

9. In advance of the hearing, on 4 September 2023, the first defendant/cross-claimant foreshadowed that he would be making an application to adjourn the hearing of the two notices of motion today on the basis that the Court Book was not served on him with sufficient time for him to adequately prepare for the hearing and raising various complaints as to the conduct of the plaintiff’s solicitors, including that they were deliberately withholding his evidence. He has made the adjournment application before me today.

10. Section 66(1) of the Civil Procedure Act 2005 (NSW) (CPA) provides that, subject to rules of court, the court may at any time and from time to time by order, adjourn to a specific day any proceedings before it or any aspect of any such proceedings. I therefore have discretion whether to grant the adjournment sought in this case.

11. Both parties have been given the opportunity to address me today on the issue of whether an adjournment should be granted.

12. The overriding purpose of the CPA and the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in their application to proceedings in this court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1) of the CPA. I must seek to give effect to that overriding purpose when I exercise any power in the CPA or the UCPR: s 56(2) of the CPA.

13. In seeking to give effect to the overriding purpose, I must have regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties: s 57 of the CPA.

14. In deciding whether to make any order granting an adjournment and the terms on which any such order is to be made, I must seek to act in accordance with the dictates of justice: s 58(1) of the CPA.

15. For the purpose of determining what are the “dictates of justice” in this particular case, I must have regard to the provisions of ss 56 and 57 of the CPA (s 58(1) of the CPA) and may have regard to the following matters to the extent to which I consider them to be relevant (s 58(2) of the CPA):

1. the degree of difficulty or complexity to which the issues in the proceedings give rise;

2. the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities;

3. the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties;

4. the degree to which the respective parties have fulfilled their duties under s 56(3) of the CPA;

5. the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings;

6. the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction; and

7. such other matters as the court considers relevant in the circumstances of the case.

16. In my view, the just, quick and cheap resolution of the real issues in the proceedings necessitates the refusal of the first defendant/cross-claimant’s adjournment application.

17. The draft Court Book index was provided to the first defendant/cross-claimant on 28 August 2023. The preparation of the joint Court Book was only completed on 4 September 2023 due, in part, to the requests of the first defendant/cross-claimant for the Court Book to include approximately 734 pages of his affidavit material.

18. Despite the lateness at which the Court Book was prepared, the material contained in it was at all times in the possession of the first defendant/cross-claimant for some time, allowing him sufficient time to prepare for today’s hearing.

19. The only reason provided by the first defendant/cross-claimant is that he had not been given access to the Court Book with adequate time to prepare for the hearing. In my view, he has had sufficient notice of the material that has been placed before the court today and to adequately prepare for today’s hearing. In my view, there is no injustice occasioned to the first defendant/cross-claimant of the Court Book only being prepared and provided to him on 4 September 2023.

20. The two notices of motion were filed several months ago. The proceedings were commenced more than 2 years ago. Granting an adjournment would cause yet further delay in their determination. Recognising that there is a degree of complexity in the issues raised in the proceedings, there has been enough delay in these proceedings already. It is an important matter that the court quickly and efficiently determine the cases before it so as to maintain public confidence in the judicial system. To enable that to happen, the interlocutory applications should be determined as efficiently as possible, without yet further delay.

21. For these reasons, approaching the matter in accordance with the dictates of justice, I have decided that the just, quick and cheap resolution of the real issues in the proceedings means that the first defendant/cross-claimant’s application for an adjournment of the hearing today of the two notices of motion before me should be refused.

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Decision last updated: 06 October 2023