Chandrasekaran v Navaratnem

[2020] NSWSC 95

Supreme Court

New South Wales

Medium Neutral Citation:

Chandrasekaran v Navaratnem [2020] NSWSC 95

Hearing dates:

18 February 2020

Decision date:

18 February 2020

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Adjourn the defendant’s motion filed on 11 December 2019 to the Registrar’s list at 9am on 28 April 2020.

 

(2)   Order the plaintiff to pay the defendant’s costs thrown away by reason of the adjournment.

 (3)   Grant liberty to the parties to apply to relist the matter on 3 days’ notice.

Catchwords:

CIVIL PROCEDURE – late application for adjournment – application for costs thrown away by reason of adjournment – costs order made

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 67
Uniform Civil Procedure Rules 2005 (NSW), r 11.6

Category:

Procedural and other rulings

Parties:

Sujatha Chandrasekaran (Plaintiff)
Kannan Navaratnem (Defendant)

Representation:

Counsel:
P E King (Plaintiff)
D A Lloyd (Defendant)

  Solicitors:
Clyde & Co (Defendant)

File Number(s):

2019/260333

Judgment (EX TEMPORE)

1. The defendant’s notice of motion was listed for hearing before me today. The primary relief sought by the defendant was an order pursuant to r 11.6 of the Uniform Civil Procedure Rules 2005 (NSW) or s 67 of the Civil Procedure Act2005 (NSW) that the proceedings be permanently stayed on the basis of forum non conveniens. There is also alternative relief sought: namely, that the proceedings be dismissed on the basis that they are frivolous and vexatious or, in the alternative, that the amended statement of claim be struck out.

2. The parties have exchanged written submissions and the defendant has prepared a joint court book of some 274 pages to assist with the hearing of this notice of motion. When the matter was called, Mr King, who appears on behalf of the plaintiff, indicated to me that the preferred course would be for the matter to be adjourned. He informed me that there was what he described as a related case before Button J which is a proceeding brought by the plaintiff against the Western Sydney Local Health District trading as Westmead Hospital. Those proceedings are currently part-heard before Button J. They were originally listed for five days but, as they were not completed in that time, they have been adjourned to resume on 31 March 2020 for one week. Mr King informs me it is expected that the hearing will conclude within that time.

3. Mr King informed me that if the plaintiff were unsuccessful before Button J then the current proceedings before me will become futile and unnecessary. He indicated that the evidence of Dr Padhi is a live issue in the proceedings before Button J and the conversation between Dr Padhi and the defendant in the proceedings before me have been the subject of evidence before Button J.

4. Mr King also told me that if the plaintiff wins before Button J then the damages she claims against the Western Sydney Local Health District in that case will probably incorporate any damages that may be recoverable were she to be successful in the current proceedings. Accordingly, he submitted that it was inappropriate that this Court expend time and the parties expend costs in determining issues such as are raised by the defendant’s notice of motion which I referred to at the outset.

5. Mr Lloyd, who appears on behalf of the defendant, informed me that the application for adjournment had been the subject of very little notice and, as the defendant lives in the United Kingdom, neither he nor his solicitor has been able to get instructions. He submitted that, in light of the concessions made by Mr King, these proceedings would be, on any view, otiose given that they would be unnecessary whatever the result of the proceedings before Button J. He submitted that the plaintiff should discontinue the proceedings and, if the position changed, then she should commence again.

6. Mr Lloyd also submitted that if I were to accede to the plaintiff’s application for an adjournment, I should order the plaintiff to pay the costs thrown away by the adjournment. Mr King submitted that the appropriate order for costs should be either that costs be reserved or that costs be the defendant’s costs in the cause. He also submitted that in paragraph 7 of his written submissions, in opposition to the defendant’s notice of motion, notice was in fact given to the defendant of the plaintiff’s application for an adjournment.

7. I have read and considered Mr King’s written submissions dated 14 February 2020 in opposition to the defendant’s notice of motion. I do not understand paragraph 7 to constitute a present application for an adjournment of the defendant’s notice of motion. Rather, as I read the paragraph, it amounts to a submission as to what ought to occur after determination of the defendant’s notice of motion.

8. It is necessary for the purposes of these reasons for decision to set out an excerpt from those submissions. The relevant passage for present purposes is as follows:

“6.   The Defendant’s interlocutory application should be rejected with costs.

7.   On the Plaintiff’s application in view of the Defendant’s lack of cooperation in assisting the Plaintiff to elicit the truth in her subsisting Supreme Court matter [which I take to be the matter before Button J], and his non-compliance with the Rules of Court even though professionally advised, plus his statement he would refuse to comply with a subpoena of the Supreme Court, (eg para 68) and some direct uncontradicted evidence of the Plaintiff of the Defendant's conduct in breach of duty (eg para 30), the Court should stand the matter over for a short period pending resolution of the associated matter before Justice Button fixed to resume on 31 3 2020 for one week.”

9. In these circumstances, it was reasonable for the defendant not to appreciate that those paragraphs constituted an application for an adjournment. Whilst I accept what Mr King said, namely that is what he intended, I do not consider that the words necessarily make that clear; in fact, quite to the contrary.

10. In circumstances where a party wishes to apply for an adjournment of a motion or proceedings, it is very important that there be communication between the legal practitioners in order that that intention can be made clear and the opposing party can appreciate that the application is to be made. In those circumstances, if the application, as in the present case, is not opposed, costs can thereby be minimised and the Court can be approached early with a view to ensuring that Court time and parties’ costs are not wasted.

11. The need for the application for the adjournment has been occasioned by the proceedings brought by the plaintiff before Button J. It must have been apparent to the plaintiff by the end of term last year that the proceedings before Button J were adjourned part-heard until March of this year. In those circumstances, had the plaintiff informed the defendant that its notice of motion of 11 December 2019 ought be adjourned, pending determination of the proceedings before Button J, then the defendant would have been saved all the costs thrown away by reason of the adjournment because of the time between then and now. In these circumstances, I consider it to be appropriate to order the plaintiff to pay the defendant's costs thrown away by reason of the adjournment.

Orders

12. For the reasons given above, I make the following orders:

1. Adjourn the defendant’s motion filed on 11 December 2019 to the Registrar’s list at 9am on 28 April 2020.

2. Order the plaintiff to pay the defendant’s costs thrown away by reason of the adjournment.

3. Grant liberty to the parties to apply to relist the matter on 3 days’ notice.

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Decision last updated: 19 February 2020