Blacktown City Council v Wilkie (No 13) [2012] NSWLEC 110

Blacktown City Council v Wilkie (No 13) [2012] NSWLEC 110

It was not just under s 56 of the Civil Procedure Act 2005, informed by ss 57-60, to require the hearing to proceed on 21 and 22 May 2012 because uncontested affidavit evidence showed the Council could not produce the required documents or prepare responsive evidence in time. Each party was to bear its own costs because the need for vacation was connected to late evidence and amendments by Mr Reid, the Council needed to answer a serious newly raised bad faith issue, the Council had foreshadowed its difficulty, and it would be unfair to penalise the Council for compromising on the notice to produce.

Jurisdiction
Australia
Judgment Date
11 May 2012
Procedural Posture
Class 4 Proceedings; Application to Vacate Hearing Dates for a Further Amended Notice of Motion / Ex Tempore Judgment on the Applicant's Application to Vacate the Hearing and on Costs
Outcome
Hearing vacated with each party to bear their own costs.
Legal Topics
['vacation of Hearing Dates' 'further Amended Notice of Motion' 'notice to Produce' 'filing and Service of Evidence' 'costs Thrown Away' 'overriding Purpose Under the Civil Procedure Act 2005']
['practice and Procedure' 'civil Procedure' 'land and Environment Court Proceedings'] ['vacation of Hearing Dates' 'further Amended Notice of Motion' 'notice to Produce' 'filing and Service of Evidence' 'costs Thrown Away' 'overriding Purpose Under the Civil Procedure Act 2005']

Case Brief

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Procedural Posture

Class 4 Proceedings; Application to Vacate Hearing Dates for a Further Amended Notice of Motion / Ex Tempore Judgment on the Applicant's Application to Vacate the Hearing and on Costs

Legal Issues

  1. 1 ["Whether the hearing dates for the second respondent's further amended notice of motion on 21 and 22 May 2012 should be vacated." 'Whether the second respondent should receive costs thrown away by reason of the vacation.']

Ratio Decidendi

It was not just under s 56 of the Civil Procedure Act 2005, informed by ss 57-60, to require the hearing to proceed on 21 and 22 May 2012 because uncontested affidavit evidence showed the Council could not produce the required documents or prepare responsive evidence in time. Each party was to bear its own costs because the need for vacation was connected to late evidence and amendments by Mr Reid, the Council needed to answer a serious newly raised bad faith issue, the Council had foreshadowed its difficulty, and it would be unfair to penalise the Council for compromising on the notice to produce.

Court Disposition

Hearing vacated with each party to bear their own costs.

Orders

  • ['The dates for the hearing of the further amended notice of motion on 21 and 22 May 2012 are vacated.' 'Each party is to bear their own costs of the vacation and of this application.']