Wende v Horwath (NSW) Pty Limited (No 4)

[2015] NSWDC 158

District Court

New South Wales

Medium Neutral Citation:	Wende v Horwath (NSW) Pty Limited (No 4) [2015] NSWDC 158
Hearing dates:	5 February 2015
Date of orders:	05 February 2015
Decision date:	05 February 2015
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Leave granted to file in court the affidavit of Michael Andrew Clear dated 5 February 2015. (2)   The stay of the proceedings in the District Court is refused. (3)   Direct the plaintiffs to file and serve any evidence on which they intend to rely with respect to the outstanding questions by 4 March 2015. (4)   Direct that any evidence in reply by defendant be filed and served by 24 March 2015. (5)   Direct that any written submissions to be relied upon be exchanged by the parties, with copies supplied to my associate, by 12 noon on 30 March 2015. (6)   List for the matter for hearing of the outstanding issues on Tuesday, 31 March 2015 at 10am before P Taylor SC DCJ. (7)   Liberty to either party to apply before 14 February 2015 and on 2 days’ notice in the event that the Court of Appeal listing on 9 February 2015 impacts on any of the orders or directions made.
Catchwords:	PRACTICE AND PROCEDURE - application for a stay
Category:	Procedural and other rulings
Parties:	Herbert Wende (first plaintiff) Margaret Wende (second plaintiff) Mark Lloyd (third plaintiff) Horwath (NSW) Pty Limited (defendant)
Representation:	Counsel: Mr G E Babe (plaintiffs) Mr S Hughes (defendant)   Solicitors: Clear Lawyers (plaintiffs) Diamond Conway (defendant)
File Number(s):	2012/48613
Publication restriction:	None

Judgment

1. The plaintiffs make an application for a stay of these proceedings pending the determination of an application for judicial review which has been filed in the Court of Appeal.

2. The matters in the proceedings in this Court which remain outstanding are, first, the determination of the amount of costs in respect of previous Local Court, District Court and Court of Appeal proceedings; secondly, whether there should be a lump sum costs order made in respect of the costs in the District Court on the appeal from the review panel, and thirdly, if there is an order for a lump sum costs order, what should be the amount of that lump sum.

3. Because the application to the Court of Appeal seeks to set aside a decision previously made, there is the possibility that, should the matter proceed, costs incurred will be wasted. However, I am of the view that the interests of justice are best served by this Court concluding the proceedings in this Court. This will lessen the delay in the proceedings generally: the parties agree that, if the District Court proceedings are not finalised, the matter will return to this Court for further orders whatever decision be reached by the Court of Appeal.

4. There is also, in my view, a potential benefit to the Court of Appeal in dealing with the matter where all of the underlying proceedings have been completed, as the Court would have the benefit of knowing the result of the whole matter rather than only a part. There is a further reason, that it is common ground that the outstanding matters are relatively brief and could be done expeditiously in this Court.

5. This view I have reached is influenced by the circumstance that the determination of the application in the Court of Appeal has not been set down for hearing and there is necessarily uncertainty as to when that hearing will occur.  If it became apparent that this Court’s decision on the outstanding matters would be given at a time which would preclude the Court of Appeal from dealing with the whole matter in the course of the existing application for judicial review, then the application for a stay may warrant reconsideration.

6. I should also add that I note that the defendant has filed all its evidence in respect of the three outstanding questions.

7. Accordingly, the orders I make are:

1. Leave granted to file in court the affidavit of Michael Andrew Clear dated 5 February 2015.

2. The stay of the proceedings in the District Court is refused.

3. Direct the plaintiffs to file and serve any evidence on which they intend to rely with respect to the outstanding questions by 4 March 2015.

4. Direct that any evidence in reply by defendant be filed and served by 24 March 2015.

5. Direct that any written submissions to be relied upon be exchanged by the parties, with copies supplied to my associate, by 12 noon on 30 March 2015.

6. List for the matter for hearing of the outstanding issues on Tuesday, 31 March 2015 at 10am before P Taylor SC DCJ.

7. Liberty to either party to apply before 14 February 2015 and on 2 days’ notice in the event that the Court of Appeal listing on 9 February 2015 impacts on any of the orders or directions made.

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