FEDERAL COURT OF AUSTRALIA

Motor Trades Association of Australia Superannuation Fund Pty Limited v Rickus (No 4) [2009] FCA 1085

PRACTICE AND PROCEDURE — application to vacate hearing date — ability of Court to accommodate the wishes of the parties

MOTOR TRADES ASSOCIATION OF AUSTRALIA SUPERANNUATION FUND PTY LIMITED (ACN 008 650 628) AND ANOR v JOHN RICKUS

ACD 36 of 2007

FLICK J

24 SEPTEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The hearing date presently fixed for 30 October 2009 is vacated.

2.                  The matter is set down for hearing in Sydney on 28 October 2009 at 9:30 am.

3.                  The costs of the present application are reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     Presently before the Court is what hitherto would have been regarded as a routine application, one which could be easily addressed and resolved.

2                     It is an application to vacate by consent the hearing of an outstanding aspect of a proceeding which has previously been heard in part (Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878; Motor Trades Association Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117 and Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus (No 3) [2008] FCA 1986, 69 ACSR 264) and to fix an alternative date to hopefully suit the convenience of all counsel. The existing date fixed for hearing is 30 October 2009. That date was fixed on 14 August 2009.

3                     This Court has long prided itself on its ability to hear and resolve all matters falling within its jurisdiction in a timely and expeditious manner.

4                     Its ability to continue to do so in the New South Wales District Registry of the Court is, however, coming under an increasing constraint. That constraint arises as a direct result of the failure to appoint new Judges to replace those who have either retired or resigned. The New South Wales District Registry has had the loss of four such Judges — His Honour Justice Wilcox, a Judge of this Court from 1984 to 2006; His Honour Justice Sackville, a Judge of this Court from 1994 to 2008; Her Honour Justice Branson, a Judge of this Court from 1994 to 2008 and His Honour Justice Tamberlin, a Judge of this Court from 1994 to 2009.

5                     The loss to this Court as a whole, and especially the New South Wales District Registry, of such eminent and distinguished jurists who have served the Court and the community for a combined judicial period of about 65 years could not in any circumstances be easily addressed.

6                     Advertisements were placed in newspapers by the Attorney-General’s Department in about April 2009 inviting applications from members of the profession who wished to express an interest in appointment to this Court. Members of the profession have applied. The fate of all applications remains undetermined.

7                     The continuing and unexplained non-appointment of Judges to replace those who have retired or resigned places serious constraints upon the ability of the Court to continue to provide the just resolution of disputes in as timely a manner as it has in the past. Access to justice is not promoted by the provision of renovated court rooms without also the appointment of an adequate number of Judges to sit in them.

8                     The failure to make appointments has been the subject of observations made as recently as last Friday by His Honour Justice Lindgren at the conclusion of the hearing before His Honour in Mark Alan Whittaker & Anor v Child Support Registrar & Anor (NSD204/2008). Concurrence is expressed with the views His Honour then expressed.  

9                     In the present matter it is fortuitous that a commercial dispute in another proceeding which had been set down for hearing for a period of four weeks has recently been adjourned to April 2010. A window of opportunity thus presents itself to the present parties to accommodate their wishes. But for the vacation of the other proceeding, there would have been very little ability to do so. The ability to accommodate other litigants in a like position in the future remains questionable.

10                  Within the constraints presently imposed, every effort will nevertheless be given to continue to grant such expedition as is appropriate to the hearing of every proceeding. 

11                  The concerns expressed remain my own views and I make them for myself alone.

ORDERS

12                  The Orders of the Court are:

1.                  The hearing date presently fixed for 30 October 2009 is vacated.

2.                  The matter is set down for hearing in Sydney on 28 October 2009 at 9:30 am.

3.                  The costs of the present application are reserved.

Associate:

Dated:         24 September 2009