Background
John Donald Wild, a farmer and member of the Marthaguy Irrigation Scheme — an unincorporated association diverting water from the Macquarie River downstream of Warren, NSW — sued the scheme and its operating company, Marthaguy Channel Ltd, in both his personal capacity and as executor of his late wife’s estate. The plaintiffs allege that since August 2010 the defendants failed to deliver water to their property in accordance with the scheme’s deed of constitution, and that their water allocations under certain water access licences were diverted to other scheme members without authorisation. They seek separation of their water entitlements under s 74 of the Water Management Act 2000 (NSW) and damages for conversion and breach of the scheme deed — a claim estimated at around $3 million.
The matter had a troubled procedural history. Directions made on 12 December 2025 required the plaintiffs to serve all lay and expert evidence by 27 February 2026. They failed to comply. The matter was relisted on 13 April 2026, at which point both parties initially agreed to vacate the existing hearing date, with the defendants noting they had lost their “window” of witness availability. Chen J declined to adjourn at that stage but made further orders compelling the plaintiffs to serve their evidence, making clear the defendants’ position on adjournment remained fully protected. By 8 May 2026 the plaintiffs’ expert evidence was still outstanding; the court extended the deadline to 14 May 2026, with a guillotine order barring reliance on any expert evidence served later without leave. The expert subsequently advised he could not complete the report before 26 June 2026 at the earliest.
The plaintiffs filed a notice of motion on 10 June 2026 seeking vacation of the two-week hearing listed to commence 6 July 2026. The defendants opposed, arguing the plaintiffs should be compelled to proceed without the expert report, or at most be given an extension only to 21 June 2026 — a date the expert had already indicated he could not meet.
The Court’s Holding
Chen J granted the adjournment and vacated the 6 July 2026 hearing. His Honour accepted the plaintiffs’ explanation that the most recent default stemmed from the expert’s own revised assessment of when he could complete the report — a matter beyond the legal representatives’ control — and that the plaintiffs had acted promptly once alerted, including by providing briefing materials to the defendants to facilitate preparation of their own expert evidence. Requiring the plaintiffs to proceed without expert evidence would, the court found, likely cause grave injustice given the complexity of quantifying the water entitlements at issue and the significant quantum of the claim.
The court rejected the defendants’ characterisation of the plaintiffs’ conduct as “serial flouting” of orders, noting the guillotine order expressly contemplated an application for leave to vary it, and that the broader procedural history — including the defendants’ own loss of their evidence window well before the motion — contextualised the default. The defendants’ argument that forcing the plaintiffs to proceed without expert evidence would cause no real hardship (because the defendants’ own expert was already quantifying water values) was dismissed as unrealistic: senior and junior counsel for the plaintiffs had considered the expert evidence necessary to their case, and the court declined to override that considered position on the defendants’ say-so alone.
On costs, the court ordered the plaintiffs to pay the defendants’ costs of the motion to vacate and costs thrown away by reason of the vacation, reflecting the plaintiffs’ responsibility for the situation. The court also directed the parties to engage in mediation before the Honourable James Stevenson SC by 18 July 2026, subject to his availability.
Key Takeaways
- A guillotine order does not absolutely foreclose a later application for leave where the order itself contemplated such an application and the non-compliance stems from circumstances outside the applicant’s control.
- Courts will weigh the gravity of potential injustice to an applicant — including the risk of being shut out from adducing evidence necessary to prove a substantial damages claim — heavily in favour of adjournment, even where there is a history of procedural non-compliance.
- A party seeking to resist an adjournment on the basis of prejudice must provide compelling, particularised evidence of that prejudice; general assertions of stress or inconvenience carry limited weight.
- Where a hearing date was effectively doomed well before the adjournment application (here, as early as April 2026), the court will account for that broader context rather than treating the most recent default in isolation.
Why It Matters
This decision is a practical illustration of how NSW courts balance strict case management principles against the risk of shutting a litigant out of evidence essential to proving a significant claim. While the Civil Procedure Act 2005 (NSW) demands timely dispatch of proceedings, Chen J’s reasoning confirms that guillotine orders and hearing dates will not be enforced to the point of producing grave injustice — particularly where earlier procedural history shows the hearing timetable was already under threat and the applicant acted promptly once the problem crystallised.
For practitioners, the decision underscores the importance of managing expert witnesses proactively and of notifying courts and opposing parties immediately when an expert’s timeline slips. It also signals that opposing parties who themselves failed to prepare evidence within the original window may face an uphill battle in convincing a court that justice requires an adversary to proceed without key evidence.