Young v Roads and Maritime Services

[2015] NSWCA 2

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Young v Roads and Maritime Services [2015] NSWCA 2
Hearing dates:	2 February 2015
Decision date:	02 February 2015
Before:	Leeming JA
Decision:	1. Dismiss the notice of motion filed 29 January 2015. 2. Reserve the costs of that notice of motion.
Catchwords:	PRACTICE AND PROCEDURE – expedition – application for expedition of leave application – no utility in granting expedition – application dismissed.
Cases Cited:	Young v Roads and Maritime Services [2014] NSWSC 1104
Category:	Procedural and other rulings
Parties:	Maureen Mary Young (Applicant) Roads and Maritime Services (First Respondent) State of New South Wales (Second Respondent)
Representation:	Counsel: Applicant in person P Lane (First Respondent) Solicitors: Crown Solicitor (First Respondent)
File Number(s):	2014/339704
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Date of Decision: 29 October 2014 Before: Hidden J File Number(s): 2014/198018

EX TEMPORE JUDGMENT

1. LEEMING JA:  Before me is Ms Young’s notice of motion seeking expedition of her application for leave to appeal from the interlocutory judgment of Hidden J given on 29 October 2014, dismissing Ms Young’s notice of motion itself seeking expedition filed 20 October 2014. The procedural history of this litigation is not free from complexity. Parts were summarised, expressly incompletely, by Garling J in Young v Roads and Maritime Services [2014] NSWSC 1104. What follows, likewise, will not be comprehensive, but it will be sufficient in order to resolve the application before me.

2. Ms Young is a defendant to proceedings brought by Roads and Maritime Services (RMS) in the Local Court. She has filed a defence and cross-claim. By summons filed on 4 July 2014, Ms Young commenced proceedings in this Court whose substance was to transfer the proceedings in the Local Court to this Court. His Honour Hidden J recorded that Ms Young’s transfer application had been case managed and fixed for hearing on 19 February 2015, and had come before a number of judges and registrars in the Common Law Division. She sought its expedition.

3. It is not necessary to reproduce the whole of Hidden J’s short reasons, sitting as a Duty Judge in the Common Law Division. His Honour referred to the relatively lengthy history of the matter, the fact that expedition involves a disruption of the business of a very busy court, that lists were already heavily committed, particularly in the last seven weeks of the Court’s term, and that the application to transfer seemed likely to take “some little time”. His Honour said, and Ms Young has relied upon this in support of her application, that Ms Young’s prospect of recovering damages was “no more than speculative”, but added, “There is no doubt great benefit to [Ms Young] to have them heard as soon as possible so that if damages are awarded the plaintiff can have the benefit of them as soon as possible”.

4. In oral submissions, Ms Young has drawn attention to three respects with which she is dissatisfied with his Honour’s judgment. The first is that she was not accorded procedural fairness, in substance, because she was not given a full opportunity to advance all the submissions she wished to maintain. The second and third are that aspects of her notice of motion were not determined by Hidden J. In particular, what was not determined by his Honour was a pending application, originally filed in this Court on 5 September 2014, for default judgment against RMS and the State on her cross-claim and, alternatively, the monetary aspects of her cross-claim.

5. The matter proceeded before Hidden J on the basis that there was no intention on the part of RMS to interfere with Ms Young’s possession of a houseboat, which ultimately is the subject of the litigation. The same stance has been maintained before me by Ms Lane, who appears for RMS. RMS neither opposes nor consents to Ms Young’s application for expedition; its principal position is that the hearing date, which remains set down for 19 February 2015 (in 17 days’ time) be maintained.

6. The application before me is merely one for the expedition of the pending application for leave to appeal. It is not appropriate for me to express any concluded view about the strength or otherwise of the application for leave. However, relevant to the application for expedition is my assessment, as best I can, of its strength, for there is little point, notwithstanding the fact that RMS does not oppose the grant of expedition, in very substantially accelerating the determination of this application if ultimately to do so is of limited or no utility.

7. There is a dispute between RMS and Ms Young as to whether or not there has indeed been default in filing the defence to the cross-claim. That is not something that I can or would determine; nor is it something, as I read the materials, that will arise on the hearing of the application for leave. To the extent that Ms Young is concerned that statements in the reasons of Hidden J materially impact upon her rights at some stage in the future to have her application for default judgment heard and determined, I do not regard those concerns as well founded. To the extent that Ms Young is concerned that aspects of the reasons of Hidden J cast doubt upon her entitlement, in the absence of obtaining default judgment, to a substantial monetary claim, once again this is not something that is before me but I do not at present regard those concerns as well founded. The fact of the matter is, as I read the materials, that the matter was heard and determined by Hidden J, on the basis that the only question was whether there should be expedition of the principal matter before the Supreme Court namely the application to have pending proceedings in the Local Court transferred to it. The question before his Honour was whether that hearing should take place either on 19 February 2015, when it had been set down and had been case managed by a number of judges and registrars of this Court, or at some earlier time as Ms Young’s motion sought. The matters of which Ms Young complains were not determined were not matters that were before his Honour on 29 October 2014. Finally, in relation to Ms Young’s oral and written complaints about a denial of procedural fairness on the part of Hidden J it is sufficient to say that my review of the transcript of the application before his Honour does not suggest any lack of opportunity for Ms Young to advance the submissions she wished to make. Repeatedly, his Honour invited Ms Young to identify the matters she wished to advance.

8. For those reasons, without expressing a concluded view, the application for leave does not strike me as one that is particularly strong.

9. Ms Young’s primary concerns, concerning the effect of refusing expedition upon the underdetermined application for default judgment and her claims for substantial monetary compensation, do not at present appear to me to be well-founded. But the question before me, though, is whether the pending application for leave should be expedited. The fact of the matter is that this application concerns the timing of a hearing to determine whether proceedings should be transferred from the Local Court to this Court. At present, that hearing will take place on 19 February 2015. If I grant expedition to the application for leave to appeal, and if two judges of this Court grant leave to appeal and hear the appeal and make orders in Ms Young’s favour, that would, in the very best case, do no more than accelerate the hearing of the transfer application by a matter of days. On the other hand, if the hearing be adjourned, or the reserved, or there be a grant of leave but not the immediate determination of the appeal, there is every chance that there will be further delay, and there will certainly be more expense to the parties, in the determination of what itself is only a procedural question, namely whether this Court or the Local Court will hear proceedings which have been commenced by the parties in it.

10. It is because, as I pointed out on more than one occasion to Ms Young, that I cannot see any real utility in causing this Court more expeditiously to review the decision of Hidden J that I do not consider there to be a sound basis to expedite the application for leave to appeal from his Honour’s decision.

11. Accordingly I dismiss the notice of motion filed 29 January 2015. The effect of that order will be that there is an undetermined application for leave to appeal pending in this Court, which will be allocated a date in the usual manner, and that the hearing set down on 19 February 2015 will proceed.

12. The formal orders of the Court are:  

1. Dismiss the notice of motion filed 29 January 2015.

2. Reserve the costs of that notice of motion.

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Decision last updated: 05 February 2015