Beware of non-compliance of Court directions

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Beware of non-compliance of Court directions

By Ivana Hayman and Alyce Kliese

The recent judgment of The Warehouse Pty Ltd atf Warehouse Invest Trust v Valuer General [2022] NSWLEC 84 puts parties on notice to ensure that Court directions are compiled with or consequences may result in a halt in proceedings.

Justice Duggan in her ex-tempore judgment considered a situation where both parties to proceedings in the Land and Environment Court failed to advise the Court of any difficulties and timetable slippages encountered. The first time the parties informed the Court of the difficulties was 10 days before the hearing. The parties sought the hearing date to be vacated and further directions in relation to the filing of evidence.

In the judgment, her Honour listed several directions that were not compiled with in relation to the filing and service of a number of joint expert reports and stated the following:

“The state of non‑compliance with the directions in isolation, with the failure to re‑list, is a poor reflection on the litigants in this matter. It is particularly poor when one considers the history of this matter.”

As per the Land and Environment Court practice notes, parties are obliged to re-list a matter and to advise the Court of any slippages as soon as practicable. This is particularly important as late vacation of hearing dates causes flow on effects, including impacts on other parties who may have been able to utilise the Court’s time had they been aware of the potential available dates.

Ultimately in the interests of justice and circumstances of the case, her Honour acceded to the extremely late request and ordered the vacation and further directions for experts. Her Honour did, however, prevent the parties from obtaining new hearing dates unless and until such a time that all other orders were satisfied.

You can find the full decision here: https://www.caselaw.nsw.gov.au/decision/181db3816d9ce60910fa9cbd