What has happened?
In civil enforcement proceedings (Marshall Rural v Basscave  NSWLEC 84), in which the Applicant (Marshall Rural Pty Ltd) claimed that certain development was carried out by the Defendant (Basscave Pty Ltd) without consent (or was prohibited) under the Environmental Planning and Assessment Act 1979, the NSW Land and Environment Court has refused to accede to the Applicant’s request for an expedited hearing.
In a judgment handed down on 17 July 2017, the Court has set out its reasons for refusing the application and provided a useful reminder of the approach that will be adopted, and the factors that will be considered, in determining an application for expedition.
Findings by the Court
Put simply, the Court (at ) held that the factors to be considered are those set out by Justice Young in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd which include:
“(2) Is there a special factor involved which warrants expedition. Usually these factors will be:
(a) the loss of witnesses if the case is not fixed at an early date;
(b) matters of public importance;
(c) that the subject matter of the litigation will be lost if it is not heard quickly;
(d) that the litigation to date has been delayed through no fault of the applicant;
(e) that the applicant is suffering hardship not caused through his own fault;
(f) that there is self-induced hardship (including those cases where corporate bodies fix a meeting date in the near future and then expect the Court to displace all other matters to hear their dispute before that date);
(g) the nature of the case (for example, ejectment, child custody); and
(h) that there are large sums of money involved.
(3) Have the parties proceeded up to the date of the hearing of the motion for expedition with due speed?
(4) Are the parties willing if expedition is granted to do all in their power to abridge the hearing time …”
In this case, the Court methodically considered whether each of the above factors applied in the present case and concluded that none of them did. On that basis, the Court refused the application for expedition.
This case provides a useful reminder of the factors that will be considered by a Court in an application for expedition.
Seeking an expedited hearing can, in the right circumstances, help mitigate the costs of delay that might otherwise be suffered by a party because of litigation.
It should not be assumed, however, that the Court will ‘automatically’ grant expedition. Rather, the making of such an application will always requires careful consideration having regard to each of the factors outlined above.