Australia: Getting ahead of the pack: the case for an expedited hearing

Last Updated: 21 May 2018
Article by Breellen Warry, Peter Holt and Georgia Appleby

Most Read Contributor in Australia, September 2018

Applicants often ask whether the case can be made to bring forward the hearing date.

This article looks at the recent decisions of the Court in TC (Tallwoods) Pty Ltd v Liverpool City Council [2018] NSWLEC 48 (Tallwoods) and TC (Tallwoods) Pty Ltd v Liverpool City Council (No 2) [2018] NSWLEC 60 (Tallwoods No 2).

The case for an expedited hearing

There is no express power authorising the Court to make orders for expedition under the Civil Procedure Act 2005, the Uniform Civil Procedure Rules 2005, the Land and Environment Court Act 1979 or the Land and Environment Court Rules 2007.

Instead, the Court relies on its general powers under the Civil Procedure Act 2005 to make such directions as it thinks fit for the speedy determination of the real issues between the parties, and for the just, quick and cheap disposal of proceedings. Some parties will attempt to use these powers to get their matter heard faster than standard practice generally allows.i

However, in order to get an order for expedition you will need to meet certain requirements. This is because you are asking the Court to exercise a discretionary power, which the Court will only consider where it is satisfied that it is appropriate and reasonable to do so. It is, therefore, helpful if the opposing party consents to expedition but consent alone will not be a sufficient justification.

When deciding whether or not to grant a request for expedition the Court will need to consider the factors set out in the decision of Justice Young in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33. The considerations are:

  • is there a special factor involved that warrants expedition? Such special factors include whether:
    • the failure to grant expedition will result in the loss of a witness
    • the matter relates to an issue of public importance
    • the subject matter of the litigation is at risk of being lost
    • the applicant is suffering hardship
    • the nature of the case warrants expedition (such as child custody matters); or
    • the matter involves large sums of money.
  • have the parties been acting with due speed?
    The Court is unlikely to grant expedition where the party seeking the order has acted to delay or unduly complicate the proceedings. To this extent, an applicant must come to the Court with 'clean hands'.
  • are the parties willing, if expedition is granted, to do all in their power to abridge the hearing time?

An expedited hearing can be a stressful process and requires both sides to cooperate. This can include refining the matters in dispute, submitting written objections and restraining cross-examination.

Tallwoods and Tallwoods 2 – a case study

In Tallwoods and Tallwoods 2, Acting Justice Molesworth was prepared to agree to expedition. In this case, Tallwoods had entered into put and call options for the purchase of two parcels of land from two different vendors. Tallwoods had entered into these options so that they could seek development consent for a residential subdivision, which was required for them to secure finance. Tallwoods had expended in excess of $2 million in option fees, and were liable to pay a further $7.9 million on settlement.

In late 2017, Tallwoods purported to lodge a development application with Liverpool City Council (the Council). The Council then responded to Tallwoods rejecting the application claiming that it could not determine it because there was an existing DA that was required to be determined first.

Tallwoods claimed that because the Council had rejected and not refused the application it could not exercise its statutory appeal rights. To rectify this, Tallwoods commenced proceedings seeking, amongst other things, a declaration that the decision of the Council to reject the DA was void and of no effect. Tallwoods also brought a motion for expedition which relied on factors including imminent financial hardship, the likelihood that the subject matter of the proceedings may be lost and the fact that they had acted with due speed. Overall, the Court was convinced that expedition should be granted due to the imminent and serious consequences that would flow to Tallwoods if the Court refused the application.

However, in other matters the case for expedition has been less successful. For example, in Jomasa Pty Limited v City of Ryde Council [2017] NSWLEC 1530, Registrar Froh did not grant the motion because she found that risk of financial hardship alone was not a sufficient justification. In particular, she stated that while she agreed that the applicant would likely suffer some financial consequences, these consequences were an inherent risk of the development and was not a sufficient grounds to warrant expedition.

Similarly in Marshall Rural Pty Ltd v Basscave Pty Ltd [2017] NSWLEC 84, the applicant brought the motion on the basis that expedition was in the public interest. They claimed that this was because the defendant was conducting earthworks that may have adverse environmental impacts. However, in finding for the defendant, Molesworth AJ held that there was insufficient evidence that any unlawful earthworks were being undertaken and that no other special factors were relevant in justifying a grant for expedition.

These cases provide a helpful reminder to parties that the Court will not automatically grant expedition and that any applicant seeking such a grant will need to satisfy the Court that their matter meets the requisite criteria.

In particular, applicants should take care to address as many of the principles in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd as possible. Applicants should also be wary that the Court will be reluctant to expedite proceedings where it may be suggested that an applicant has contributed to any potential future hardship.

Footnote

iGandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council [2013] NSWLEC 116

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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