Citation: Bryden, James as Executor of the Estate of John Anthony (deceased) v Minister for Lands & Ors [2011] NSWSC 919
Court: Supreme Court of New South Wales
Date: 7 April 2011
Judge(s): Brereton J
Background
The plaintiff, an executor of a deceased estate, had obtained interlocutory orders from Rein J sitting as the Equity Division Duty Judge on 24 March 2011. Those orders granted the plaintiff 21 days of unlimited access across the third and fourth defendants' property along a specified track, to enable the care and movement of cattle on the plaintiff's land.
The access period had been running for 14 days at the time of this application, with 7 days still remaining. The matter had been adjourned by Rein J to the Expedition List on 8 April 2011.
Earlier in the week, the solicitor for the third and fourth defendants approached the court to have the matter listed in the duty list. The defendants sought, on short notice and without a filed notice of motion until the day of hearing, to have the Rein J orders set aside on the basis that they had been obtained by false evidence.
Legal Issues
- Whether the Duty Judge list was an appropriate forum to determine an allegation that the plaintiff obtained orders by fraud or false evidence
- Whether the third and fourth defendants' application to set aside the interlocutory orders, dismiss the plaintiff's urgency claim as an abuse of process, and remove the matter from the Expedition List should be granted
- Whether procedural directions sought by the defendants could be dealt with in the duty list or should await the Expedition Judge
Decision
Brereton J declined to set aside the orders made by Rein J. His Honour observed that the core allegation, namely that the plaintiff had put a false case of urgency to Rein J, amounted to a claim of obtaining a judgment by fraud or false evidence. That is a serious allegation, and the plaintiff was entitled to an opportunity to put on evidence in response before any such application could be determined.
His Honour also doubted that the mere fact that the plaintiff had not exercised the full extent of access under the orders, with 7 days still to run, was sufficient to infer that no need for the orders existed in the first place. The inference the defendants sought to draw was not a safe one at this stage.
On the procedural question, Brereton J held that a contest over whether false evidence was placed before the Duty Judge would necessarily require examination and cross-examination of witnesses. The duty list, by its nature, is not suited to that kind of hearing. The validity of the urgency claim was, in any event, precisely what the Expedition Judge would be asked to assess the following day.
His Honour also noted that disputes concerning access to land are almost always appropriate for a speedy trial, and that even if the urgency claim had not been made out in full, that would not necessarily undermine the case for expedition. The procedural directions sought by the defendants were remitted to the Expedition Judge.
Orders Made
- Leave granted to the third and fourth defendants to file the Amended Notice of Motion
- Motion directed to be returnable instanter; further service dispensed with
- Orders 1, 2, 3 and 4 in the Amended Notice of Motion (setting aside the Rein J orders, dismissing the urgency claim, removing the matter from the Expedition List, and ordering indemnity costs against the plaintiff) refused
- Balance of the motion adjourned to be heard with the expedition application before the Expedition Judge on 8 April 2011
- Third and fourth defendants ordered to pay the plaintiff's costs of the motion to date
Key Takeaways
- An allegation that interlocutory orders were obtained by fraud or false evidence is a serious matter requiring the respondent to be given an opportunity to file evidence in reply before any such application can be determined.
- The Equity Division duty list is not an appropriate forum for disputes that would require the examination and cross-examination of witnesses, even where the relief is framed as urgent.
- Brereton J reinforced the well-known observation that opposing an expedition application is often the surest way to ensure it succeeds.
- Where an urgency claim is disputed, that dispute is properly resolved by the Expedition Judge, not by the Duty Judge list on short notice.
- Procedural directions connected to substantive matters already listed for expedition are appropriately dealt with before the Expedition Judge rather than resolved piecemeal in the duty list.
Legislation and Cases Referenced
Legislation:
- Uniform Civil Procedure Rules 2005 (NSW), Part 13 Rule 13.4(1)(c) (relied on by the defendants in support of their abuse of process argument)
Cases cited: No cases were cited in the judgment.