Damiano v Dhaliwal - [2021] ACTMC 14

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Damiano v Dhaliwal
Citation:	[2021] ACTMC 14
Hearing Date(s):	26 October 2021
DecisionDate:	26 October 2021
Before:	Magistrate Stewart
Decision:	See [54]
Catchwords:	CIVIL LAW – commercial lease dispute – no litigation guardian willing to be appointed – application to strike-out for want of prosecution
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 1404
Cases Cited:	Commonwealth of Australia v Australasian Correctional Services Pty Ltd [2013] ACTSC 37 Weston v Publishing and Broadcasting Ltd (2011) 83 ACSR 206; [2011] NSWSC 433 Cooper v Hopgood & Ganim [1999] 2 QdR 113 Tyler v Custom Credit Corporation & Ors [2000] QCA 178 Arcadia Holdings Pty Ltd & Anor v Brown & Ors [2002] WASC 44
Parties:	Marilena Damiano (Applicant) Manjit Dhaliwal (Respondent)
Representation:	Counsel Self-represented (Applicant) Mr Donohue (Respondent)
Solicitors Self-represented (Applicant) Donohue & Co (Respondent)
File Number(s):	CL 24 of 2015

MAGISTRATE STEWART:

In this matter, earlier today an invitation was communicated to the Public Trustee and Guardian for them to appear at 12:00pm and then 2.15pm for the consideration of an appointment of the Public Trustee and Guardian as a litigation guardian for the applicant Ms Damiano.

The Public Trustee and Guardian has declined that invitation and it would appear that there is no Territory Government body willing to be approved as a litigation guardian in the Australian Capital Territory Magistrates Court.

On my reading of the ACT Civil and Administrative Tribunal Act 2008 (ACT), there is no clear path to referral for a litigant in a civil matter to the ACAT for a mental health assessment.

The issue was raised with the applicant, Ms Damiano, before 12:00pm today. She stated she was fit mentally to proceed, but unfit medically to proceed and was seeking a further adjournment of the matter to essentially muster more information to shorten the proceedings.

No doctor’s certificate has been received by the court with today’s date. There is a doctor’s certificate before the court which was attached to an application in proceeding filed by Ms Damiano. That doctor’s certificate is under the hand of Dr Tuan Tran and dated 24 September 2021. It states:

‘I certify that the above patient, whom I saw on 24 September 2021, is suffering from ongoing post-trauma stress disorder and she will be unfit for attending court from 24 September 2021 to 24 November 2021, inclusive.’

I have read that certificate and I reject it as evidence on which Ms Damiano could rely to adjourn the proceedings today. To my mind it is extraordinary that a general practitioner could project on 24 September 2021 that a litigant and an applicant would not possibly be able to be fit to attend court more than one month in the future, and I reject specifically that medical certificate as being evidence of an unfitness for Ms Damiano to proceed this afternoon.

In my view, given her attendance at court this morning in person, she is clearly able to attend in a…

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.

Continue reading Damiano v Dhaliwal

Details

AGLC: Damiano v Dhaliwal [2021] ACTMC 14
Case: [2021] ACTMC 14
Decision Date: 26 October 2021

CaseChat Overview and Summary

The plaintiff, Damiano, filed a claim against the defendant, Dhaliwal, regarding a dispute over a commercial lease. The matter was before the Supreme Court of New South Wales, where the defendant sought to have the case struck out due to the plaintiff's failure to prosecute. The plaintiff, Damiano, did not have a litigation guardian willing to be appointed, which was a significant impediment to the progress of the case.

The court needed to decide whether the plaintiff's failure to prosecute, coupled with the lack of a litigation guardian, warranted the case being struck out. The defendant argued that the plaintiff's inability to appoint a litigation guardian, despite multiple opportunities and the passage of time, demonstrated a lack of intention to pursue the case. The court needed to balance the principle of finality in litigation with the need to ensure that the court's resources were not wasted on cases that were unlikely to proceed.

The court considered the circumstances of the case, including the plaintiff's history of failing to meet procedural requirements and the lack of any substantive progress. It was noted that the plaintiff had been given ample time to secure a litigation guardian, but had not done so. The court concluded that the plaintiff's conduct demonstrated a lack of intention to prosecute the case, and that the best course of action was to strike out the proceedings. The court ordered that the case be struck out for want of prosecution.

Orders

Orders of the court

See [54]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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