Peter James Spencer v Wayne Dennis Bamber & Ors [2011] NSWSC 1245

Peter James Spencer v Wayne Dennis Bamber & Ors [2011] NSWSC 1245

Although the matter was urgent and vacating the hearing date would prejudice the defendants, it was practically impossible to proceed because the plaintiff was absent with evidence of recent heart attack(s), there was an issue whether his affidavits could be read if he was unavailable for cross-examination, and newly tendered correspondence raised matters to which he had not had an opportunity to respond and which the defendants could not put to him in cross-examination. The hearing was therefore vacated, the matter was referred to the Expedition List, and costs were reserved for the trial judge.

Jurisdiction
Australia
Judgment Date
20 October 2011
Procedural Posture
Interlocutory Application to Vacate a Hearing Date / Before Hearing; Matter Listed for Two Days Commencing 20 October 2011
Outcome
Hearing dates vacated; matter listed in the Expedition List; costs reserved for consideration by the trial judge.
Legal Topics
['vacation of Hearing Date' 'case Management' 'expedition List' 'costs Reserved' 'availability of Counsel' 'medical Condition of Party']
['practice and Procedure' 'civil Procedure'] ['vacation of Hearing Date' 'case Management' 'expedition List' 'costs Reserved' 'availability of Counsel' 'medical Condition of Party']

Case Brief

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Procedural Posture

Interlocutory Application to Vacate a Hearing Date / Before Hearing; Matter Listed for Two Days Commencing 20 October 2011

Legal Issues

  1. 1 ['Whether the hearing date listed for 20-21 October 2011 should be vacated.' 'Whether the unavailability of pro bono counsel justified vacating a hearing date listed for several months.' "Whether the plaintiff's medical condition and inability to attend or be cross-examined made it practically impossible to proceed with the hearing." 'Whether the matter should be referred to the Expedition List and how costs of the application should be dealt with.']

Ratio Decidendi

Although the matter was urgent and vacating the hearing date would prejudice the defendants, it was practically impossible to proceed because the plaintiff was absent with evidence of recent heart attack(s), there was an issue whether his affidavits could be read if he was unavailable for cross-examination, and newly tendered correspondence raised matters to which he had not had an opportunity to respond and which the defendants could not put to him in cross-examination. The hearing was therefore vacated, the matter was referred to the Expedition List, and costs were reserved for the trial judge.

Court Disposition

Hearing dates vacated; matter listed in the Expedition List; costs reserved for consideration by the trial judge.

Orders

  • ['The hearing of the matter listed on 20-21 October 2011 be vacated.' 'The matter be listed in the Expedition List tomorrow, 21 October 2011.' 'That the costs of today be reserved for consideration by the trial judge.']