Alam v Giampietro t/as Legal and Company Solicitors

[2019] NSWDC 179

District Court

New South Wales

Medium Neutral Citation:	Alam & Ors v Giampietro t/as Legal & Company Solicitors [2019] NSWDC 179
Date of orders:	29 March 2019
Decision date:	29 March 2019
Jurisdiction:	Civil
Before:	Letherbarrow SC DCJ
Decision:	The plaintiff’s motion is dismissed with costs.
Catchwords:	CIVIL PROCEDURE – self-represented plaintiffs - application to adjourn hearing on grounds of ill health of one plaintiff – standard orders for hearings – very good reasons not demonstrated
Legislation Cited:	Civil Procedure Act, ss 56-60 Practice Note DC (Civil) No 1, Standard Orders for Hearings
Category:	Procedural and other rulings
Parties:	Muhummad Mahmud Alam (first plaintiff) Saqiba Sattar (second plaintiff) Qamar Sattar (third plaintiff) Leonardo Giampietro t/as Legal & Company Solicitor (first defendant) Quang T Nguyen (second defendant)
Representation:	Counsel: A. Horvath (first defendant) R. Carey (second defendant)     Solicitors: Kennedys (Australasia) (first defendant) Sparke Helmore Lawyers (second defendant)
File Number(s):	2017/00061840
Publication restriction:	None

Judgment

1. This is a motion brought by the three plaintiffs in these proceedings, filed yesterday, seeking to “adjourn the case for the next nearest court date”. The matter is presently listed for a 5 day hearing commencing next Monday. There is a joint affidavit, also filed yesterday, from the three plaintiff’s involved. The joint affidavit is sworn on 26 March last, being Tuesday of this week.

2. The application to, in effect, vacate the hearing, is opposed by Ms Horvath of counsel, who appears for the first defendant, and Mr Carey of counsel, who appear for the second defendant.

3. This morning one of the three plaintiffs, Mr Alam, has appeared. In my position as list Judge, yesterday afternoon I checked the daily list published for today to ascertain what judges may become available to hear motions, this being motions day in this Court. Whilst checking the list, I noticed that there was a plaintiff in a case also listed for hearing today before his Honour Judge Smith.

4. This morning I spoke to his Honour who told me the plaintiff in the matter before him, which had commenced on Tuesday, was a woman of approximately 70 years of age and that he was aware that a few months ago she had had surgery.

5. The affidavit in support of this morning’s motion annexes some medical records which indicate that the plaintiffs live at 70 Robinson Street, Wiley Parl. His Honour Judge Smith handed me a copy of one page of the transcript of the matter before him which indicates that the plaintiff currently before him lives at the same address. I will have that page of the transcript marked as MFI 1.

6. This morning when I asked Mr Alam where the third plaintiff was, he indicated to me that she was at home sick. I then asked him, inter alia, whether in fact she has been running another matter in this Court since Tuesday before Judge Smith. At that point he told me that that was correct. Nevertheless, he asserted that she was too sick to run the matter fixed for next Monday. At that point I was concerned about Mr Alam incriminating himself in relation to what could be regarded as swearing a false affidavit and I suggested that he not say anything further. Suffice it to say that I find these circumstances very troubling.

7. Annexed to the affidavit there is a short handwritten report from a general practitioner that says:

“Mrs Sattar is a patient of renal and oncology services in the SLHD (Sydney Local Health District). She is currently slowly recovering and has multiple appointments to attend. If she can be excused from additional appointments in the next two months, that would be appreciated.”

1. That document has her address on it, which is the address mentioned.

2. There is also annexed an operation report from a Professor Yan showing that the plaintiff had thoracic surgery on 10 December last. The discharge notes, which are also annexed, show that she was discharged on 21 December last.

3. Ms Horvath’s primary submission is that I would not be satisfied on the medical evidence that the plaintiff is unfit to appear on Monday.

4. This matter has a very, very long history. It had a prior five day hearing date which was vacated in an attempt to obtain legal representation for the three plaintiffs in question. In that regard, the matter has been referred to the Registrar at least twice for him to find pro bono assistance. Despite extensive efforts in that regard, this Court has not been able to find anyone willing to appear for the three plaintiffs.

5. I should also indicate that these proceedings allege professional negligence against the first defendant, a solicitor. The second defendant is a barrister who is also alleged to have been professionally negligent.

6. These are old proceedings in relation to this Court, having been commenced in February 2017. There are only 85 matters in the Court that currently remain unfinalised two years after filing and this is one of them. I know that from statistics provided to me this week.

7. In circumstances where the third plaintiff who, as I understand it, was to be the three plaintiffs’ primary advocate in these proceedings, has in fact been running another case before another Judge of this Court since Tuesday, apparently without any difficulty, I find it extraordinary that the affidavit is silent about same. In this regard, when matters are set down in this Court, the “Standard Orders for Hearings” are made pursuant to Practice Note DC (Civil) No 1. Such orders which are on this file, state that subject to ss 56-60 of the Civil Procedure Act hearings will only be vacated or adjourned where there are “very good reasons”.

8. Suffice it to say that in my view there are not very good reasons demonstrated here. As I said, I am very troubled by the affidavit mentioned and by what I was told this morning and I am presently considering whether to refer the matter to the Prothonotary of the Supreme Court.

9. I any event, for the reasons outlined, the order sought in the motion is refused and the subject motion is dismissed.

10. Mr Alam does not wish to say anything about why he and the other two plaintiffs should not pay costs of the motion. In my view, that is an appropriate order and I therefore order the defendants’ costs of this motion to be paid by the three plaintiffs.

**********

Decision last updated: 16 May 2019