Dekkan v Picciau

Case [2008] NSWCA 18

New South Wales


Court of Appeal


CITATION: DEKKAN v PICCIAU [2008] NSWCA 18
HEARING DATE(S): 21 February 2008
 
JUDGMENT DATE: 
3 March 2008
JUDGMENT OF: Hodgson JA at 1; Tobias JA at 2; Basten JA at 3
DECISION: 1. Grant leave to appeal. 2. Dismiss the appeal. 3. Order the applicant/appellant to pay the respondent's costs in this Court.
CATCHWORDS: APPEAL – appeal from refusal of District Court judge to grant adjournment – appellate intervention in discretionary judgment - FURTHER EVIDENCE – evidence tending to show procedural unfairness – denial of truth of statements made by lawyer in court – evidence obtained from lawyer but not addressing statements made – further medical evidence – doctor not called - LEGAL REPRESENTATIVE – retainer for litigation – adjournment application refused – not prepared for trial – withdrawal of instructions – advice given to client – application to withdraw from hearing - PROCEDURAL FAIRNESS – defendant taken to hospital in ambulance in course of hearing – defendant withdrew retainer of solicitor – trial judge refused adjournment – hearing continued in absence of defendant and any legal representative of defendant – balance of prejudice between parties
CATEGORY: Principal judgment
CASES CITED: Carryer v Kelly (1969) 90 WN (Pt) 1 (NSW) 566
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577
HG v The Queen [1999] HCA 2; 197 CLR 414
Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243
House v The King (1936) 55 CLR 499
Maxwell v Keun [1928] 1 KB 645
Opitz v Repatriation Commission (1991) 29 FCR 50
Queensland v JL Holdings Pty Ltd [1997] HCA 1; 189 CLR 146
Sali v SPC Ltd [1993] HCA 47; 67 ALJR 841
Sullivan v Department of Transport (1978) 20 ALR 323
Sydney City Council v Ke-su Investments Pty Ltd (1985) 1 NSWLR 246
PARTIES: Bassam Dekkan - Claimant
Betty Picciau - Opponent
FILE NUMBER(S): CA 40746/06
COUNSEL: Claimant - Self-represented
J Parnell - Opponent
SOLICITORS: Claimant - Self-represented
Law & Order - Opponent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 3696/05
LOWER COURT JUDICIAL OFFICER: Kearns DCJ
LOWER COURT DATE OF DECISION: 27 October 2006






                          CA 40746/06
                          DC 3696/05

                          HODGSON JA
                          TOBIAS JA
                          BASTEN JA

                          3 March 2008

Bassam DEKKAN v Betty PICCIAU

Headnote


This appeal arose from proceedings in the District Court brought by the respondent, Ms Picciau, against the applicant, Mr Dekkan, to recover moneys which she claimed she had lent to him between July 2003 and September 2005. The matter was heard on 25, 26 and 27 October 2006 before Kearns DCJ.

On 26 October 2006, during the luncheon adjournment, the applicant was taken to hospital in an ambulance. When the hearing resumed, the applicant’s solicitor, Mr Johnson, informed the Court that the applicant had been taken to hospital and had withdrawn Mr Johnson’s retainer. Mr Johnson was granted leave to withdraw, having indicated to the Court that he had explained to the applicant that the…

Continue reading Dekkan v Picciau

Sign in free to access the full text

Details
AGLC
Dekkan v Picciau [2008] NSWCA 18
Case
[2008] NSWCA 18
Decision Date

CaseChat Overview and Summary

The appeal concerned a District Court judge's refusal to grant an adjournment to the applicant, Mr. Dekkan, who was the defendant in proceedings brought by the respondent, Mr. Picciau. Mr. Dekkan had withdrawn his legal representation during the course of the hearing, and the trial judge proceeded to hear the matter in his absence.

The primary legal issue before the Court of Appeal was whether the District Court judge erred in refusing the adjournment, thereby denying Mr. Dekkan procedural fairness. This involved considering whether the evidence presented, including further medical evidence and evidence relating to the alleged denial of truth of statements made by Mr. Dekkan's lawyer, warranted an adjournment, and whether the balance of prejudice between the parties favoured granting an adjournment.

The Court of Appeal found that the District Court judge had not erred in refusing the adjournment. While acknowledging the seriousness of Mr. Dekkan's medical condition and his withdrawal of instructions, the court considered that the judge had properly balanced the prejudice to Mr. Dekkan against the prejudice to Mr. Picciau. The further medical evidence did not establish that Mr. Dekkan was unable to attend court, and the evidence concerning the lawyer's statements did not directly address the core issue of Mr. Dekkan's absence. The judge had also considered the history of the proceedings and the potential for further delay.

Leave to appeal was granted, but the appeal was dismissed. The applicant was ordered to pay the respondent's costs in the Court of Appeal.

Orders

Orders of the court

1. Grant leave to appeal. 2. Dismiss the appeal. 3. Order the applicant/appellant to pay the respondent's costs in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.