Abela v Chevalier College (No 2)
[2024] NSWSC 640
•29 April 2024
Supreme Court
New South Wales
Medium Neutral Citation: Abela v Chevalier College (No 2) [2024] NSWSC 640 Hearing dates: 29 April 2024 Date of orders: 29 April 2024 Decision date: 29 April 2024 Jurisdiction: Common Law Before: Griffiths AJ Decision: 1. The hearing listed on 2 May 2024 is vacated.
2. The plaintiff is to bear the defendant’s costs thrown away.
3. The plaintiff is to provide to the defendant a schedule of documents currently in his possession by close of business 30 April 2024.
4. The defendant is to provide to the plaintiff, electronically, any documents served and/or relied upon by the defendant in the proceedings that are not, to the defendant’s knowledge, currently in the plaintiff’s possession, by close of business 6 May 2024.
5. A consent to act as tutor appointing Matthew Abela as the plaintiff’s tutor and a certificate signed by the plaintiff’s solicitor, pursuant to r 7.16 of the Uniform Civil Procedure Rules 2005 (NSW), are to be filed and served by 7 May 2024.
6. The plaintiff is to file and serve an amended summons by close of business 7 May 2024.
7. The plaintiff is to file and serve any additional affidavit evidence he wishes to rely upon by close of business 10 May 2024.
8. The plaintiff is to file and serve an outline of written submissions by close of business 17 May 2024.
9. The defendant is to file and serve an outline of written submissions by close of business 31 May 2024.
10. The defendant is to file and serve any additional affidavit evidence it wishes to rely upon by close of business 31 May 2024.
11. The matter is listed for hearing with an estimate of one day on 3 June 2024 at 10.00am before Griffiths AJ.
12. The Court grants leave for the defendant to approach the Associate of Griffiths AJ with an alternate appropriate hearing date which is as close to 3 June 2024 as possible and is a date that suits the plaintiff’s counsel, Mr Carrigan.
13. The plaintiff is to provide a copy of these short minutes of order via email to the defendant by no later than 5pm today.Catchwords: CIVIL PROCEDURE – adjournment application – where mediation unsuccessful – where applicant experiencing health problems
Legislation Cited: Uniform Civil Procedure Rules, r 7.16(b)
Cases Cited: Abela v Chevalier College [2024] NSWSC 50
Category: Procedural rulings Parties: Michael Joseph Abela (Applicant)
Chevalier College (Respondent)Representation: Counsel:
Solicitors:
A Carrigan (ex parte)
Agility Legal
File Number(s): 2023/212096 Publication restriction: Nil.
EX TEMPORE JUDGMENT - REVISED
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HIS HONOUR: By notice of motion filed on 24 April 2024, the plaintiff seeks leave to vacate the hearing date which is currently scheduled to occur this Thursday, 2 May 2024, and that he be granted leave to file and serve an amended summons. The plaintiff also seeks to amend the timetable for the hearing of this matter in the light of the above proceeding.
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This proceeding has quite a lengthy history. Some of the history is set out in a judgment dated 2 February 2024 (see Abela v Chevalier College [2024] NSWSC 50). Further chronological details are helpfully set out in an affidavit by the defendant's solicitor, Ms Rachael Smith, which affidavit is dated 26 April 2024.
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I should interpolate at this point that when the matter was called for hearing this morning at 9am, there was no appearance by the defendant. It is evident, however, from Ms Smith's affidavit that the defendant opposes the hearing date being vacated. It points to the plaintiff's conduct in earlier proceedings which it says has been the cause of delay. The affidavit says that the defendant would be prejudiced if the hearing were to be vacated because it is awaiting payment of unpaid school fees dating back to 2014 and has incurred significant costs as a result of the plaintiff's noncompliance with directions that have been made by the Court.
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The last time this matter came before me on 2 February 2024, the plaintiff sought to vacate the hearing of the matter which was scheduled to occur on 5 February 2024. The plaintiff at that time also wanted more time in order to retain legal representatives and have a tutor appointed because of the difficulties that he was having conducting the matter.
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On that day, 2 February 2024, the Court ordered that the matter be mediated. I understand that a mediation was subsequently conducted but that it was unsuccessful. As I indicated in my reasons dated 2 February 2024, in the light of the lack of success of the mediation, the matter would come back before me and, as I had indicated, a new early hearing date would be set. That occurred during a directions hearing on 22 March 2024 when I listed the matter for hearing this Thursday, 2 May 2024, and a new timetable was set for that to occur.
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The plaintiff relies upon two affidavits by his now instructing solicitor, Mr Paul O'Shanassy. Mr O'Shanassy's affidavits are dated 23 April 2024 and 28 April 2024 respectively. The first of those affidavits deposes to the medical difficulties which the plaintiff is and has been experiencing which Mr O'Shanassy says explains the reasons for the failure on the part of the plaintiff to comply with the timetabling orders which were made on 22 March 2024. The affidavit also deposes to ongoing medical problems relating to both the plaintiff's physical and mental health and the difficulties which Mr O'Shanassy has had in obtaining instructions from the plaintiff.
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Out of concern for the plaintiff's privacy I will not detail in these reasons the nature of the medical issues which confront the plaintiff, only to say that I accept that they are serious issues, and I do not doubt the truthfulness of Mr O'Shanassy's description in them, albeit on a hearsay basis in his affidavit.
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Perhaps more positively, the Court has been advised that as of Saturday 27 April 2024, the plaintiff's elder son, Mr Matthew Abela, has agreed to be his tutor for the purpose of conducting the remainder of the proceeding. The Court welcomes that development and hopes that it will mean that the proceeding can now go ahead towards an early final hearing without the plaintiff's legal representatives being challenged by the problems of obtaining instructions from the plaintiff, as deposed to by Mr O'Shanassy.
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I believe, however, that in the circumstances of the matter and having regard to the lengthy background which I have touched upon, it is appropriate that the plaintiff bear the defendant's costs thrown away by the hearing on 2 May 2024 being vacated. I have discussed with Mr Carrigan of counsel, who has appeared today before the Court, the Court's wish that the matter should be set down for a final hearing as soon as is reasonably practicable. I acknowledge that the defendant inexplicably has not appeared today, and it may well be that the date that I will list the matter for a hearing is not convenient to it. In those circumstances, I will make orders which permit the defendant to approach my associate if an alternative date is more convenient to it, but that alternative date will need to be as close as possible to 3 June 2024 and also be a date that suits Mr Carrigan. I believe it essential in this matter that the Court have the assistance of counsel at the final hearing.
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For all these reasons, I make the following orders:
The hearing listed on 2 May 2024 is vacated.
The plaintiff bear the defendant’s costs thrown away by the hearing date being vacated.
The plaintiff is to provide a schedule of documents currently in his possession to the defendant by close of business 30 April 2024.
The defendant is to provide electronically any documents served and/or relied upon that are not currently in the plaintiff’s possession by close of business 6 May 2024.
A consent to act as tutor appointing Matthew Abela as tutor, together with a certificate as required by r 7.16(b) of the Uniform Civil Procedure Rules is to be filed and served by 7 May 2024.
The plaintiff is to file and serve an amended summons by close of business 7 May 2024.
The plaintiff is to file and serve any additional affidavit evidence upon which it wishes to rely by close of business 10 May 2024.
The plaintiff is to file and serve an outline of written submissions by close of business on 17 May 2024.
The defendant is to file and serve an outline of written submissions by close of business on 31 May 2024.
The defendant is to file and serve any additional affidavit evidence upon which he wishes to rely by close of business 31 May 2024.
The matter is listed for hearing with an estimate of one day at 10am on 3 June 2024 before me.
I grant leave to the defendant to approach my associate in the event that it seeks an alternative hearing day, which must however be as close to 3 June 2024 as practicable and also be convenient to Mr Carrigan of counsel, who is now retained by the plaintiff, instructed by Mr O'Shanassy.
The plaintiff is to provide a copy of these short minutes of order to the defendant by email by no later than 5pm today.
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Decision last updated: 27 May 2024