Unique International College Pty Limited v Australian Council for Private Education and Training

[2016] NSWSC 1027

Supreme Court

New South Wales

Medium Neutral Citation:	Unique International College Pty Limited v Australian Council for Private Education and Training [2016] NSWSC 1027
Hearing dates:	21 July 2016
Date of orders:	21 July 2016
Decision date:	21 July 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [10]
Catchwords:	PRACTICE AND PROCEDURE – Vacation of hearing dates – Necessity to follow practice note
Cases Cited:	Unique International College Pty Ltd v Australian Council for Private Education and Training [2016] NSWSC 607
Category:	Principal judgment
Parties:	Unique International College Pty Limited - Plaintiff Australian Council for Private Education and Training - Defendant
Representation:	Counsel:    Mr RA Jedrzejczyk - Plaintiff Ms V McWilliam - Defendant   Solicitors: Minter Ellison – Plaintiff Redvers Read –Defendant
File Number(s):	2016/141988
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

1. Before the Court is a Notice of Motion seeking, amongst other things, an order that a hearing date of 26 July 2016 be vacated. The motion also seeks an order that the proceedings be transferred to the general list of the Equity Division of the court, but having agitated that issue with the legal representatives, and for the reasons that I indicated at the time, it seems appropriate that the matter remain in the Common Law Division at this stage.

2. The Notice of Motion is supported by an affidavit of Caitlin Maria Murray of 18 July 2016. The motion has been filed by the plaintiff, but the order for a vacation of the hearing date is consented to by the defendant.

3. I do not propose, and indeed it is not necessary, for me to outline the nature of the proceedings which have been brought and the leave which is sought. Those matters are helpfully set out in a judgment of Adamson J on 12 May 2016, at which time her Honour granted interim orders restraining the defendant from taking particular action: Unique International College Pty Ltd v Australian Council for Private Education and Training [2016] NSWSC 607.

4. The background to the proceedings is fully set out in paragraphs 6 and following of Ms Murray's affidavit, particularly at paragraphs 14 and following. It seems that in the latter part of June this year the defendant gave notice that it intended to hold an extraordinary general meeting on 22 July 2016 (i.e. tomorrow). The matters to be determined at that meeting will seemingly have a bearing, to some degree, on the issues litigated in these proceedings.

5. I am satisfied on the material before me that, in the light of that forthcoming meeting, there is no practical alternative other than to vacate the hearing date, and that is the order that I propose to make. However, there are aspects to the background to this application which are patently unsatisfactory.

6. These proceedings were given a hearing date of 26 July, with an estimate of two days. The parties were given, in effect, an expedited hearing, such was the urgency of the issues said to be in dispute.

7. On 11 July 2016 a form of consent orders was "efiled" in the registry. Those consent orders purported, amongst other things, to vacate the hearing date of 26 July, to list the matter for hearing on 22 September 2016, and to set a future timetable by which the parties could file and serve their evidence. Practice Note SC CL 1 (at (34) to (36)) sets out the procedure which is to be adopted when a party wishes to vacate a hearing date. Paragraph 34 provides, in particular, that where a trial judge has not been allocated to a matter (as was the case with this proceeding) a list judge will determine the application on a date suitable to the court.

8. The Court is entitled to expect that those who practice in it will be, at least in general terms, aware of Practice Notes which govern the court's procedures. That said, even absent any Practice Note, the proposition that what occurred in this case was appropriate is, frankly, mind-boggling. Consent orders were filed without any enquiry being made of the court as to whether or not the proposed revised hearing date was suitable, and in circumstances where the parties took it upon themselves to decide, without any reference to a judge of this court, that a hearing date should be vacated. I base those observations on information provided to me by the court's Principal Registrar.

9. It needs to be emphasised that is not the way in which this Court functions. It is not the province of parties to suit themselves about matters such as the vacation of hearing dates, the setting of timetables or the allocation of new hearing dates. All of those issues are matters for a Judge of the court to determine, or in the absence of a Judge of the court, and providing the appropriate powers available, by a Registrar of the court. What happened in this case could, perhaps flippantly, be described as some form of “procedural selfie”. I need to make it clear that it is entirely inappropriate for parties to conduct litigation in this Court in that way. It is frankly an affront to the Court to have consent orders filed in the terms in which they were in this case. All legal practitioners who practice in this Court should understand this is not the way in which things are done. Quite apart from anything else, this Court does not presently have two days in September 2016 to hear this matter. One hopes that those observations will be taken on board.

10. Accordingly I make the following orders:

1. The hearing date of 26 July 2016 is vacated.

2. The matter is listed before the Registrar on 16 September 2016 for callover, for the purposes of allocating a new hearing date.

3. In the event that between now and the callover date a matter or matters arise which have a bearing on the urgency with which this matter is required to be heard and determined, the matter can be restored to the list before me in my capacity as the List Judge of the Common Law Division of the Court, for the purposes of agitating any such issue.

4. I order that the costs of the notice of motion to vacate the hearing date be costs in the proceedings.

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Decision last updated: 27 September 2016