Bailey v Bailey [2009] NSWSC 1048

Bailey v Bailey [2009] NSWSC 1048

The hearing date was not vacated because the plaintiffs had chosen to change solicitors and counsel, the case had already been substantially prepared by their former legal representatives, the defendants offered practical assistance and access to documents, and any prejudice to the plaintiffs was either not established or was a consequence of their own decision. Vacating the hearing date would work considerable injustice to the defendants and would be inconsistent with the objects of the Civil Procedure Act 2005.

Jurisdiction
Australia
Judgment Date
25 September 2009
Procedural Posture
Procedural Ruling in the Equity Division on a Notice of Motion to Vacate a Hearing Date and Seek Mediation / Pre Trial Case Management; Liability Hearing Fixed to Commence on 9 November 2009
Outcome
Application to vacate the hearing date refused.
Legal Topics
['application to Vacate Hearing Date' 'adjournment' 'mediation' 'case Management' 'civil Procedure Act 2005 Objectives' 'prejudice From Change of Solicitors and Counsel']
['civil Procedure' 'equity' 'alternative Dispute Resolution'] ['application to Vacate Hearing Date' 'adjournment' 'mediation' 'case Management' 'civil Procedure Act 2005 Objectives' 'prejudice From Change of Solicitors and Counsel']

Case Brief

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Procedural Posture

Procedural Ruling in the Equity Division on a Notice of Motion to Vacate a Hearing Date and Seek Mediation / Pre Trial Case Management; Liability Hearing Fixed to Commence on 9 November 2009

Legal Issues

  1. 1 ['Whether the hearing date should be vacated because the plaintiffs had changed solicitors and counsel shortly before trial.' 'Whether any prejudice to the plaintiffs in preparing for trial justified vacating the hearing date.' 'Whether mediation should be ordered without affecting the existing hearing date.' 'How the objects of the Civil Procedure Act 2005 and the dictates of justice affected the management of the proceedings.']

Ratio Decidendi

The hearing date was not vacated because the plaintiffs had chosen to change solicitors and counsel, the case had already been substantially prepared by their former legal representatives, the defendants offered practical assistance and access to documents, and any prejudice to the plaintiffs was either not established or was a consequence of their own decision. Vacating the hearing date would work considerable injustice to the defendants and would be inconsistent with the objects of the Civil Procedure Act 2005.

Court Disposition

Application to vacate the hearing date refused.

Orders

  • ['The hearing date remains fixed for 9 November 2009 for three weeks.' 'The defendants are to file a defence to the fourth amended further statement of claim by 4.00 pm on Friday, 2 October 2009.' 'The plaintiffs should pay the costs of the motion.' 'The matter is stood over to 9.30 am on Thursday, 1 October 2009.']