With the Online Court in NSW coming into force it’s important that lawyers keep the contents and procedures of the various practice notes in mind before racing to use electronic solutions.
In Unique International College v Australian Council for Private Education and Trainingthe presumably tech savvy and keen lawyers on each side reached, one imagines, furious agreement to vacate a hearing date in the matter some weeks before the date fixed for hearing.
The lawyers then dutifully prepared and signed consent orders to vacate the hearing, complete procedural steps and set down a new hearing date. Those orders were eFiled with the court.
It seems that in all the excitement, the lawyers overlooked the need to file an application to the court giving reasons why the hearing date should be vacated and permitting the court to decide whether the new hearing date the parties sought was convenient to the court.
The Practice Note applicable in the Common Law Division required that such an application be brought.
In considering a formal motion to vacate the trial date, Bellew J noted that the court had no availability to accommodate the parties preferred dates for a new hearing and said:
The Court is entitled to expect that those who practice in it will be, at least in general terms, aware of Practice Notes which govern the court’s procedures. That said, even absent any Practice Note, the proposition that what occurred in this case was appropriate is, frankly, mind-boggling.
What happened in this case could, perhaps flippantly, be described as some form of “procedural selfie“.
The court’s electronic systems may one day reach a point where the vacation and re-setting of a trial date can be done without troubling the List Judge, but when that day is here you can be sure it will be announced in the Practice Note!