Case: State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: cited
On the afternoon of Thursday 23 November 2006 I ordered the Court to be adjourned while I considered the issue of whether time for hearing of this notice of motion should be abridged. I subsequently ruled that time in respect of this matter be abridged, that the requirements of O 19 r 3 Federal Court Rules be dispensed with in relation to the motion filed by the respondents on 22 November 2006, and that the notice of motion should be returnable on Friday 24 November 2006. My reasons were as follows: 1. I noted that O 19 r 3 provides: Where a notice of motion is required to be served, it shall, unless the Court or a Judge otherwise orders, be served not less than three days before the date fixed for the motion. The policy in O 19 r 3 of requiring three days notice of service of a notice of motion prior to the date fixed for the motion is to allow the respondent to the notice of motion time to prepare to meet the notice, and to avoid the situation where the respondent to the notice of motion is taken by surprise by the application. In this case, the notice of motion was filed in Court at approximately 5.00 pm on Wednesday 22 November 2006. If the notice of motion were heard on Friday afternoon at 2.15 pm, obviously less than two full days notice would have been provided between serving the notice and the hearing. 2. The discretion of the Court to order that the requirements of O 19 r 3 be dispensed with appears to be unfettered. However that discretion must be exercised judicially. 3. At the hearing on 16 November 2006, Mr Bell for the respondents, in, as he said 'laying all the cards on the table', indicated that if the trial were pushed away to the earliest convenient date, the respondents would be renewing their application for security for costs. The comments of Mr Bell that day were made in the context of submissions as to whether the trial should proceed at that time. However, despite the efforts of Counsel and this Court to conclude the hearing during the scheduled time, it was clear by early during the week commencing 20 November 2006 that the trial would not conclude by Friday 24 November 2006. Further, given the history of this matter and the comments of Mr Bell noted above, the fact that the respondents would be making an application for further security for costs if the trial did not end during the scheduled two weeks could be of no surprise to anyone, including the applicants. 4. The respondents relied on affidavits filed in March and June 2006. This material was not new, and has been before the applicants for some time. 5. I had previously heard, and dismissed, an application for security for costs by the respondents on 9 November 2006. While the circumstances then were not the same as those before me in considering the issue of abridgment of a fresh application for security, it was clear that the issue of security for costs had recently been raised substantively by the parties in this Court in relation to this case, and would have been considered by the applicants. 6. The respondents had already filed their submissions in support of this notice of motion. This was done at the same time as the notice of motion was filed. 7. The parties were before me until the following day, and Counsel had all indicated that they are not available the following week to argue the substantive matter or an application for security for costs. While this in itself was not determinative, and indeed as pointed out by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 the interests of justice are not subordinated to issues of case management, in light of the history of this case, the availability of Counsel, and the fact that these issues were not new, it was in my view reasonable that this notice of motion be heard on Friday 24 November 2006. 8 In light of this ruling, Mr Perry for the applicants requested a 10.15 am commencement on Friday to enable him time that morning to prepare to respond to the notice of motion, which I granted. 9 Cross-examination of witnesses by Mr Perry did not conclude until 5.05 pm on Friday afternoon, however Mr Bell pressed for the respondents' notice of motion in respect of security for costs to nonetheless be heard on the basis that there was a risk that the application could not be heard in the foreseeable future.