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)

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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 95
Decision Date: 18 February 2020

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Chandrasekaran v Navaratnem involved a dispute between the applicant, Chandrasekaran, and the respondent, Navaratnem. The central issue was Chandrasekaran's application for an adjournment of a hearing, which was made late, and a subsequent application for costs incurred due to the late adjournment. Chandrasekaran sought an adjournment because of a scheduling conflict, and upon the hearing proceeding, the matter was adjourned, resulting in costs incurred by Navaratnem.

The legal issues before the court were whether the late application for adjournment was justified and, if so, whether Navaratnem was entitled to costs due to the adjournment. The court had to consider the principles governing applications for adjournments and the circumstances under which costs may be awarded when an adjournment is granted. It was necessary to assess the merits of the application for adjournment, including the reasons provided and the impact of the adjournment on the other party.

The court found that the application for adjournment was justified due to the scheduling conflict presented by Chandrasekaran. However, it also acknowledged the impact on Navaratnem, who had to prepare for and attend the hearing despite the late adjournment. The court considered the principles of fairness and the need to balance the rights of both parties. Ultimately, the court concluded that the late application was justified but awarded costs to Navaratnem due to the unnecessary costs incurred as a result of the adjournment. This decision was made to ensure that parties act with due diligence in scheduling and to mitigate the impact on the other party when unavoidable circumstances necessitate an adjournment.

Orders