El-Saeidy v NSW Land & Housing Corporation

[2014] NSWCA 172

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

El-Saeidy v NSW Land & Housing Corporation [2014] NSWCA 172

Decision date:

30 May 2014

Before:

McColl JA; Ward JA

Decision:

(1) Application for leave to appeal dismissed with costs.

(2) The respondent's notice of motion filed on 27 February 2014 dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

JURISDICTION - leave to appeal - competence - where associate Judge ordered respondent conduct remediation work on tenant applicant's premises pursuant to residential tenancy agreement - where both parties sought orders after entry of judgment in respect of remediation work - where associate Judge dismissed applicant's motion and declared respondent had complied with remediation order - whether application for leave to appeal to Court of Appeal competent

JURISDICTION - leave to appeal - competence - where Registrar refused applicant's motion for adjournment and extension of time to file further submissions - where associate Judge upheld Registrar's decision on review pursuant to UCPR 49.19 - whether application for leave to appeal competent

PROCEDURE - Judgments and orders - enforcement - application for relief after final orders - implied liberty to apply - scope of - where orders sought ancillary or incidental to enforcement - whether orders final or interlocutory

PROCEDURE - leave to appeal - whether leave to appeal should be granted - associate Judge refuses to allow applicant to rely upon late served expert evidence - whether applicant afforded "fair trial" - just determination of the proceedings - dictates of justice - application of case management principles

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Interpretation Act 1987 (NSW)
Supreme Court Act 1970 (NSW)
Supreme Court Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201
Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; (1981) 147 CLR 246
Charara v Commissioner of Police [2008] NSWCA 22
Collier v Lancer (No 2) [2013] NSWCA 186
Comcare v Grimes [1994] FCA 1054; (1994) 50 FCR 60
Commonwealth of Australia v Hospital Contribution Fund of Australia [1982] HCA 13; (1982) 150 CLR 49
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
El-Saeidy v New South Wales Land & Housing Corporation [2011] NSWSC 820
El-Saeidy v NSW Land & Housing Corporation [2012] NSWSC 876
El-Saeidy v NSW Land & Housing Corporation (No 6) [2013] NSWSC 1775
Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221
Fawzi El-Saeidy v New South Wales Land & Housing Corporation [2011] NSWSC 1247
Frost v Amaca Pty Ltd [2004] NSWCA 358; (2004) 61 NSWLR 159
Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593
Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423
Hampson v Maleski [2014] NSWCA 155
Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279
Kelly v Mina [2014] NSWCA 9
Lahoud v Lahoud [2012] NSWCA 401
Licul v Corney [1976] HCA 6; (1976) 180 CLR 213
Phillips v Walsh (1990) 20 NSWLR 206
Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd [2006] NSWSC 831; (2006) 67 NSWLR 1
Rahman v Director-General Department of Education and Training [2005] NSWCA 158
Rahman v Director-General Department of Education and Training [2005] NSWCA 285
Re Luck [2003] HCA 70; (2003) 78 ALJR 177
Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47; (2008) 246 ALR 113
Say-Dee Pty Ltd v Farah Constructions Pty Ltd and Ors (No3) [2006] NSWCA 329
Standard Discount Co v La Grange (1877) 3 CPD 67
Zhang v Zemin [2010] NSWCA 255; (2010) 79 NSWLR 513

Category:

Principal judgment

Parties:

Fawzi El-Saeidy - Applicant
New South Wales Land and Housing - Respondent

Representation:

Counsel: Mr K Jakimoski - Applicant
E Elbourne - Respondent
Solicitors: JK Solicitors - Applicant
McCabes Lawyers Pty Ltd - Respondent

File Number(s):

CA 2013/354817

Publication restriction:

No

 Decision under appeal 

Citation:

[2013] NSWSC 1554

Date of Decision:

2013-10-28 00:00:00

Before:

Harrison AsJ

File Number(s):

2009/294748

Judgment

1. THE COURT: This is an application by Mr El-Saeidy for leave to appeal from a decision of Harrison AsJ in which her Honour dismissed two notices of motion that had been filed by Mr El-Saeidy and made declarations sought by the respondent, the New South Wales Land and Housing Corporation ("Housing"), relating to its compliance with works it had been required to undertake to remediate from asbestos residential premises it leased to Mr El-Saeidy in Villawood ("the premises") pursuant to a residential tenancy agreement. Her Honour also made orders requiring Mr El-Saeidy to reoccupy the leased premises within 28 days of completion of the works, failing which Housing was to be relieved of the need to comply with earlier consent orders made on 12 December 2011 and 28 August 2012 relating to Mr El-Saeidy's occupation of the premises: El-Saeidy v NSW Land & Housing Corporation (No 4) [2013] NSWSC 1554 ("El-Saeidy 4") (at [25] - [27]).

1. Housing also moves to dismiss the application for leave to appeal as being incompetent (the "competence motion").

1. For the reasons which follow we are of the view that the application for leave to appeal, and the competence motion, should each be dismissed with costs.

Principal judgment

1. The matter has a complex history some of which must be recounted to provide context to the leave application.

1. The proceedings were commenced in the Supreme Court on 2 June 2009. The applicant sought orders that (see El-Saeidy v New South Wales Land & Housing Corporation [2011] NSWSC 820 ("El-Saeidy 1") (at [2])):

"... Housing carry out the following work on the house and in the front and back yards at the premises (which premises are the subject of a residential tenancy agreement between the defendant as lessor and the plaintiff as lessee), namely:

(a) Remove and replace all the asbestos cement wall linings and all asbestos cement sheets and linings of ceilings in the house;

...

(d) Remove and replace all the asbestos cement sheets and linings on the premises including in the electricity meter box;

...

within such a time as this court deems appropriate."

1. Although it is not clear from the judgment in El-Saeidy 1, the primary claim for relief appears to have been founded on an allegation of breach of cl 11 of the residential tenancy agreement which obliged Housing to make sure the premises were reasonably clean and fit to live in and to keep them in reasonable repair: El-Saeidy 1 (at [56]). Mr El-Saeidy also appears to have founded a claim for damages on an allegation that Housing breached his right to quiet enjoyment under cl 6 of the lease: see El-Saeidy 1 (at [70]).

1. On 9 August 2011, Harrison AsJ found that Mr El-Saeidy had established the presence of asbestos on the premises which posed a risk to him and his family and that, in order for Housing to comply with its obligations under cl 11 of the residential tenancy agreement, it should carry out remediation work proposed by Mr El-Saeidy's expert, Mr De Silva: El-Saeidy 1 (at [64] - [65]). Her Honour also found in Mr El-Saeidy's favour on his claim for discomfort and loss of enjoyment. She held that Housing had breached its contractual obligation to keep the premises in reasonable repair thus causing Mr El-Saeidy physical inconvenience from living in a home with asbestos in the topsoil of the yard, visibly deteriorating asbestos walls, and a problem of excessive mould which could cause deterioration of asbestos and potentially cause health problems: El-Saeidy 1 (at [93]). She assessed damages at $4000.

1. The primary judge outlined a proposed remediation order but gave the parties the opportunity to consider its form and stood the matter over to enable them to make submissions on this subject: El-Saeidy 1 (at [101] - [102]).

1. Her Honour otherwise ordered Housing to pay Mr El-Saeidy the sum of $4000 in damages for disappointment and distress and reserved costs. On 24 October 2011, Harrison AsJ ordered Housing to pay Mr El-Saeidy's costs of the proceedings: Fawzi El-Saeidy v New South Wales Land & Housing Corporation [2011] NSWSC 1247 ("El-Saeidy 2")

Variation applications

1. The chronology following delivery of El-Saeidy 1 is best taken from Harrison AsJ's reasons in El-Saeidy v NSW Land & Housing Corporation [2012] NSWSC 876 ("El-Saeidy 3") given on 6 August 2012 which dealt with applications by both parties to vary orders made on 12 December 2011.

1. Her Honour recounted the following chronology of orders. First, on 22 September 2011, she ordered that:

"1.The defendant is to carry out the following work on the premises the subject of a residential tenancy agreement between the defendant as lessor and the plaintiff as lessee, as follows:

(a) Remove and replace all the asbestos cement wall linings and all asbestos cement sheets and linings of ceilings in the bathroom, kitchen and laundry; and remove and replace all the asbestos linings on the eaves and in the electricity meter box."

This appears to have been the proposed order 3 contemplated in El-Saeidy 1 (at [101] - [102]).

1. Secondly, her Honour recorded (El-Saeidy 3 (at [2])) that on 12 December 2011, she had made the following orders:

"BY CONSENT THE COURT ORDERS THAT:

1. Defendant is to relocate the plaintiff and his family to an alternative 3-bedroom property for the duration of the works to XX XXXX Street, Villawood, subject to Mr El-Saeidy's inspection.

2. Defendant is to pay the costs of the plaintiff's removal into and out of the premises (including packing if necessary).

3. The defendant guarantees to relocate Mr El-Saeidy to XX XXXX Street, Villawood after the completion of the works within 7 days on the same lease terms.

THE COURT ORDERS (NOT BY CONSENT) THAT:

4. The defendant is permitted to use its own contractors to undertake the work.

5. The plaintiff's possessions are to be relocated for the duration of the works."

The property the subject of order 1 was one of 5 properties Housing had offered to relocate Mr El-Saeidy and his family to during the remediation works.

1. Finally, her Honour noted that she had entered judgment on 12 December 2011: El-Saeidy 3 (at [8]).

1. Insofar as the variation motions were concerned, Harrison AsJ concluded (El-Saeidy 3 (at [12] - [15])) that she could not deal with aspects of each party's application because they were the subject of El-Saeidy 1 and the entered orders and, accordingly, she was functus officio.

1. However her Honour did deal with what she described (El-Saeidy 3 (at [16])) as the "main dispute ... as to the suitability of the alternative accommodation offered by Housing". She reasoned that she had power to determine that issue "because specific alternate accommodation was not specified nor contemplated in my judgment [and] [t]he making of an order as to suitable alternate accommodation is more in the nature of determining mechanics by which the orders already made can be brought to fruition." In this respect her Honour ordered that:

"(1) The plaintiff and his family are to be temporarily relocated to the Villawood unit, subject to Mr El-Saeidy's inspection for the presence of asbestos.

(2) The plaintiff is to inspect the property within a time period to be agreed upon.

(3) Each party is to pay his/its own costs.

(4) The matter is listed for mention before me on date to be fixed."

1. In so acting, Harrison AsJ appears to have been exercising the liberty to apply implied in relation to ancillary or incidental matters, even in the case of final orders "in connection with the working out of" the orders: Say-Dee Pty Ltd v Farah Constructions Pty Ltd and Ors (No 3) [2006] NSWCA 329 (at [35]); Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47; (2008) 246 ALR 113 (at [14]); see generally Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104 ; (2007) 70 NSWLR 201; Lahoud v Lahoud [2012] NSWCA 401.

1. In El-Saeidy 3, the "working out" orders sought related to accommodation orders essential to facilitate the undertaking of the remediation work order made on 12 December 2011.

1. On 28 August 2012 further orders (referred to in El-Saeidy 4 as "order 4") were made by consent. It is unnecessary to set out those orders in detail. Relevantly, by order 4, Housing continued the "guarantee" the subject of order 3 of the consent orders made on 12 December 2011 about relocating Mr El-Saeidy (see [12] above).

El-Saeidy 4

1. The matter next appears to have come before her Honour on 17 October 2013 pursuant to motions filed by both parties.

1. Mr El-Saeidy filed a notice of motion on 30 July 2013 seeking a number of orders principal among which were first, in substance, orders that Housing comply with the orders of 9 August 2011 in respect of the remediation of the leased property and seeking to specify who should carry out the work and, secondly, seeking additional damages "for discomfort and loss of enjoyment of home life": El-Saeidy 4 (at [25] - [27]).

1. Housing filed a notice of motion on 13 August 2013 seeking orders and declarations relevantly as follows:

"(1) The Plaintiff's Notice of Motion filed on 31 July 2013 is dismissed.

(2) A declaration that the Defendant has complied with the orders of the Court made on 9 August 2011.

(3) A declaration that the Defendant has complied with agreement [sic] referred to at paragraph 3 of the Judgment of 9 August 2011 at (b), (c) and (e).

...

(5) The Plaintiff and his family are to move back into XX XXXXX X XXXX, Villawood within 14 days; and

(6) In the event the Plaintiff does not comply with (5) above, the Defendant is relieved from compliance with Order 3 made on 12 December 2011 by consent, and Order 4 made on 28 August 2012 by consent."

1. Paragraph (3) of Housing's motion referred to its agreement recorded in El-Saeidy 1 (at [3]) to:

"(b) Collect and remove all the loose pieces of broken asbestos cement from the front and back yards;

(c) Excavate, remove and replace all the topsoil in the front and back yards;

...

(e) Further and other work necessary to ensure that the house and front and back yards are decontaminated and can be used and occupied without undue risk of inhalation of asbestos fibres."

1. On the morning of the hearing of the motions, 17 October 2013, Mr El-Saeidy filed a further notice of motion (the "Review motion") seeking to review a decision made by Registrar Bradford on 8 October 2013 refusing both his application for an extension of time to file further affidavit evidence to support his notice of motion and for an adjournment: El-Saeidy 4 (at [37]). Harrison AsJ entertained the Review motion application as a review of the Registrar's decision pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") 49.19.

1. At the outset of her reasons, Harrison AsJ set out a detailed chronology of the steps each party had taken in respect of the presence of asbestos on the premises. It is sufficient to note that in February 2013 Housing received a clearance certificate regarding the asbestos removal which it served on Mr El-Saeidy's solicitors, with a request that he comply with Order 2 of the consent orders dated 27 August 2012 to relocate to the premises: El-Saeidy 4 (at [8] - [9]). Following that advice Mr El-Saeidy's solicitor served reports from Mr De Silva dated 7 February 2013: El-Saeidy 4 (at [10]). On 19 April 2013, Housing wrote to Mr El-Saeidy proposing a joint final inspection of the premises by a hygienist of Mr El-Saeidy's choosing, with a pre-inspection meeting to discuss joint testing regime and agreement on a date for inspection. It sought a response by 26 April 2013, but none was received by that date: El-Saeidy 4 (at [14]). In May Mr El-Saeidy's solicitors refused an offer of 25 March 2013 for Mr De Silva to attend with an independent hygienist, Phillip Clifton, when he was to conduct the final inspection for a clearance certificate: El-Saeidy 4 (at [16]). In July, Housing advised that Mr Clifton was preparing a report: El-Saeidy 4 (at [17]). That report was finished on 14 August 2013 and recorded that, apart from some fibres in the south eastern area of the rear yard soil sample which "... are much larger than respirable size fibres and at that size do not pose a health risk to persons using the back yard", the "house and external areas ... are safe to access for normal occupation in regard to asbestos containing and contaminated materials": El-Saeidy 4 (at [22]). Subsequently the soil from the south eastern corner of the rear yard of the premises was removed and replaced, samples taken were tested and no asbestos was detected: El-Saeidy 4 (at [24]).

1. The parties' respective motions were listed for hearing on 22 August 2013. On that day the experts held a joint conference and reached agreement on various issues, but not in relation to the remedial work carried out to the yard: El-Saeidy 4 (at [30]). The matter was adjourned and in due course listed for hearing on 17 October 2013. Mr Clifton prepared another report said to address "the concerns in relation to the presence of asbestos in the yard of the premises that had been raised by Mr De Silva". According to Housing, this report was served on 5 September 2013 in compliance with directions - a proposition Mr El-Saeidy unsuccessfully contested below and seeks to contest in this Court. Mr El-Saeidy was ordered to serve evidence in reply to, inter alia, Mr Clifton's report by 28 September 2013. It was that order he sought unsuccessfully to have extended, his application to do so having been refused by the Registrar on 8 October 2013.

1. Her Honour disposed of the Review motion by ruling (El-Saeidy 4 (at [41]) that she would not grant an adjournment nor allow the applicant to rely on a further report of Mr De Silva for the following reasons:

" ... Since 5 September 2013, the plaintiff had the opportunity to put on further evidence of Mr De Silva. He did not do so. In an effort for this Court to understand whether any issues could be agreed upon in relation to the yard, I requested that the experts, Mr Clifton and Mr De Silva, give joint evidence at the hearing. By the time the luncheon adjournment approached it became clear that no agreement could be reached. Mr De Silva's additional report that the plaintiff sought to rely upon provided results of his retesting of the soil samples taken in December 2012 and had already been analysed in Mr De Silva's laboratory. The results were contained in a report dated 7 February 2013. That report is in evidence."

1. Her Honour also rejected an application by Mr El-Saeidy to rely upon some guidelines on Investigation Levels for Soil and Groundwater (Ex A) that had been referred to by Mr De Silva in evidence on the basis that they had not been served previously, ruling (El-Saeidy 4 (at [44])) that:

"Housing was prejudiced and this was caused by delay in the plaintiff's camp in serving Mr De Silva's report and the guidelines. Hence, I decided the further report of Mr De Silva should not be relied upon nor should a further adjournment be granted. I also took into account the amount of court time and legal expenses incurred and to permit another adjournment would be too onerous. I will say something about costs and use of resources expended in these proceedings later in this judgment."

1. Her Honour then considered the progress of the remediation works (El-Saeidy 4 (at [45]ff). After detailed consideration of the evidence she concluded:

"[71] My main concern throughout these proceedings has always been the safety of Mr and Mrs El-Saeidy's children in the house and the yard. At best, a large sample size may improve the likelihood of identifying asbestos material greater than 2 mm fraction. With the exception of one sample, all asbestos found in samples taken by Mr De Silva were in bonded form. Under both the old and new guidelines 0.01% is permitted. Bonded asbestos if present is considered safe if left alone. No asbestos was detected in the 10 sample soils taken by Mr Clifton from the areas where Mr De Silva indicated the presence of asbestos. I am satisfied that the soil in the yard is safe and does not pose a health risk to Mr El-Saeidy and his family."

Mr Clifton was Housing's expert.

1. Her Honour dismissed the applicant's claim for further damages for discontent and loss of enjoyment stating she was "at a loss to understand how this can be so" (El-Saeidy 4 ([72])). We assume her Honour's astonishment stemmed from the fact that her previous damages award had been entered in December 2011.

1. Her Honour concluded (after referring to the demands on Housing for properties and the waiting lists) that:

"[76] In my view Mr El-Saeidy's sense of entitlement has caused both Housing and this court's limited resources to be used unmeritoriously. His numerous notices of motions have taken a disproportionate amount of court time. The funds that have been expended on Mr El-Saeidy and his family are also disproportionate to the needs of other Housing tenants. This court has finally determined all the issues that were in dispute in these proceedings."

1. Her Honour made the following orders and declarations:

"The Court orders that:

(1) The plaintiff's notices of motion filed 31 July 2013 and 17 October 2013 are dismissed.

The Court makes declarations that:

(2) The defendant has complied with the orders of the Court made on 9 August 2011.

(3) The defendant has complied with agreement referred to at paragraph 3 of the Judgment of 9 August 2011 at (b), (c) and (e).

The Court further orders that:

(4) The plaintiff and his family are to move back into XX XXXXX X XXXX, Villawood within 28 days; and

(5) In the event the plaintiff does not comply with (4) above, the defendant is relieved from compliance with Order 3 made on 12 December 2011 by consent, and Order 4 made on 28 August 2012 by consent.

(6) The plaintiff is to pay the defendant's costs as agreed or assessed."

1. The orders were made on 28 October 2013. The application for leave to appeal is from this judgment.

The appeal proceedings

1. On 25 November 2013 Mr El-Saeidy filed a notice of intention to appeal. On the same day he sought a stay of the primary judge's orders which her Honour declined: El-Saeidy v NSW Land & Housing Corporation (No 6) [2013] NSWSC 1775 ("El-Saeidy 6").

1. On 28 January 2014 Mr El-Saeidy filed a document headed " Summons seeking leave and notice of appeal". This document was endorsed by a Deputy Registrar of the Court with the notation:

"Leave granted to file this document today, 28/1/14, subject to filing all documents tomorrow by 5pm including summons seeking leave to appeal, notice of appeal and three white folders. This will replace the documents filed today. Service of all documents filed tomorrow by 5pm 29/1/14."

1. On 29 January 2014 a document headed "Summons seeking leave to appeal" and a draft notice of appeal were filed, as well as, it appears from the JusticeLink records, at least one White Folder. On 29 January 2014 Mr El-Saeidy delivered to Housing's solicitor two White Folders, the Summons seeking leave to appeal and the front page of the document filed on 28 January 2014 bearing the Deputy Registrar's endorsement.

1. On 27 February 2014 Housing filed the competence notice of motion seeking the dismissal of the summons seeking leave to appeal on the basis that the application was incompetent because it was brought out of time, and alternatively an order for expedition.

Ambit of the proposed appeal

1. The summons seeking leave to appeal identifies the following parts of Harrison AsJ's decision in El-Saeidy 4 against which Mr El-Saeidy wishes to appeal (the applicant's descriptors of each impugned order appear in parentheses):

the review of the Registrar's decision to exclude evidence in reply by Mr El-Saeidy and a supplementary report of Mr El-Saeidy's expert as well as the refusal by the Registrar to enforce compliance with a subpoena filed by Mr El-Saeidy on 9 August 2013 ("Review");

(1)   the dismissal of Mr El-Saeidy's notices of motion filed 31 July and 17 October 2013 ("Decision 1");

(2)   the declaration that Housing had complied with court orders made on 9 August 2011 ("Decision 2");

(3)   the declaration that Housing had complied with an agreement referred to in her Honour's 2011 reasons (at [3] of her 9 August 2011 judgment, relating to work to be carried out at the premises ("Decision 3"); and

(4)   the order that if Mr El-Saeidy failed to move back into the Villawood premises within 28 days Housing would be relieved from compliance with order 3 made by consent on 12 December 2011 and order 4 made by consent on 28 August 2012 ("Decision 5" [sic, as in document]).

1. The grounds of appeal Mr El-Saeidy seeks to rely upon are denial of procedural fairness; failure to ensure a fair hearing; error in reliance on an analysis of soil sampling conducted by Housing's expert (in that it was said that it was non compliant with certain guidelines issued in 2009); findings of fact without proper evidence or in the alternative giving improper weight to evidence; disregarding or giving insufficient weight to relevant evidence; undue intervention of the judge in the conduct of the trial; failure to enforce compliance with a subpoena for documents relating to the replacement of topsoil at the premises; and purporting to release Housing from its contractual obligation to return Mr El-Saeidy to the Villawood premises and ignoring the rights of Mr El-Saeidy to return as a continuing tenant under the terms of his lease.

1. In the event he is granted leave to appeal and is successful on the appeal, Mr El-Saeidy seeks orders that Housing remediate the premises in accordance, we infer, with the excluded evidence, and that the premises be certified free from contamination by his expert at Housing's expense.

Competence of the application

1. The summons seeking leave to appeal was first listed for hearing on 28 March 2014. Prior to that date the Court asked the parties to provide written submissions addressing the question of whether an appeal lay from the decision of Harrison AsJ to the Court of Appeal. The Court drew the parties' attention to UCPR 49.4 and Part 60.17(k) of the Supreme Court Rules 1970 (NSW) (the "SCR"). As events transpired the hearing on that day was adjourned to 17 April 2014 on Mr El-Saeidy's application, because of the late unavailability (due to illness) of his counsel.

1. Both parties filed written submissions and orally addressed the jurisdiction issue.

1. Mr El-Saeidy submitted that he is entitled to appeal by leave from El-Saeidy 4 by virtue of Part 60.17(k) of the SCR. He also contended that Harrison AsJ's orders were final as they had the effect of substantively disposing of the parties' rights, referring to El-Saeidy 4 (at [76]) (see [30] above), apparently seeking to argue that the application did not fall within s 101(2)(e) of the Supreme Court Act 1970 (NSW) (the "SCA").

1. Housing's first submission made in support of its competence motion was that the Court lacked jurisdiction because Mr El-Saeidy's application for leave to appeal was out of time. It referred to UCPR 49.8 which requires an appeal from a decision of an associate Judge of the Supreme Court under UCPR 49.4 to be instituted by filing a notice of motion within 28 days after the material date (UCPR 49.8(1) and (2)). It accepts that if Mr El-Saeidy had filed a notice of intention to seek leave to appeal then the last day to file the summons seeking leave to appeal would have been 28 January 2014.

1. Secondly, as to the jurisdictional question the Court identified, Housing made "remarks" with the express qualification that they were not made as submissions on its behalf but, rather, "as a matter of completeness so that the Court might be fully informed. So qualified, Housing submitted that an appeal did not lie to the Court of Appeal from the associate Judge's orders by virtue of the operation of s 101 and s 104 of the SCA, UCPR 49.4 and SCR Part 60.17. Housing submitted that the only arguably relevant part of SCR 60.17 was subrule (k) which provides for an appeal, subject to the leave of the Court of Appeal in any case to which subsections (2) and (4) of section 101 apply, "(k) where the decision of the associate Judge is a final decision". Housing argued that if SCR 60.17(k) was invoked, the matter would still require leave to appeal in accordance with s 101(2)(r) because the jurisdictional limits prescribed by s 101(2)(r)(i) and (ii) were not satisfied. However Housing's further submission was that any orders the primary judge made since the orders made in El-Saeidy 1 were in the nature of "ancillary orders" intended to give effect to an earlier substantive judgment rather than final orders in the s 101(2)(r) sense.

Jurisdiction

1. As Spigelman CJ observed in Zhang v Zemin [2010] NSWCA 255; (2010) 79 NSWLR 513 (at [39] - [41]), the "first duty" of a court is to determine whether or not it has jurisdiction. As can be seen in this matter, the answer to that question is not capable of straightforward resolution.

1. The word "Judge" in s 40(1) of the SCA does not include an "associate Judge" (s 19(1), SCA). Accordingly, an associate Judge is not a component part of the Court and constitutes "the Court" only for the purpose of exercising powers of the Court specifically conferred on him or her under the Supreme Court Act: s 118(2), SCA; Commonwealth of Australia v Hospital Contribution Fund of Australia [1982] HCA 13; (1982) 150 CLR 49 (at 54) per Gibbs CJ (Stephen and Aickin JJ agreeing); see also Mason J (at 60 - 61); Murphy J (at 66); Wilson J (at 68 - 69); Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd [2006] NSWSC 831; (2006) 67 NSWLR 1 per Palmer J (at [13]). A divisional associate Judge in any Division constitutes the Court in that Division for the purpose of the exercise of the powers mentioned in s 118(2): s 118(5), SCA.

1. Pursuant to s 48(2)(f) of the SCA, appeals from specified tribunals are assigned to the Court of Appeal. Such a tribunal includes a court constituted by an associate Judge "functioning or purporting to function under any Act giving power to a judge or member, whether as a judge or member or as a designated person": s 48(1)(a)(vi) and (b)(i). Section 48 is concerned with the distribution of business and the assignment of particular types of matter to the Court of Appeal: Frost v Amaca Pty Ltd [2004] NSWCA 358; (2004) 61 NSWLR 159 (at [30]) per Mason P (Beazley and Ipp JJA agreeing). It does not itself give any jurisdiction to the Supreme Court to hear such appeals: Rahman v Director-General Department of Education and Training [2005] NSWCA 158 (at [10]) per Hodgson JA; Rahman v Director-General Department of Education and Training [2005] NSWCA 285 (at [22]) per Mason P (Handley and Bryson JJA agreeing). Accordingly, any right of appeal to this Court must be found elsewhere in relevant provisions of the SCA and SCR.

1. Section 104 of the SCA provides:

"Subject to the rules, an appeal shall not lie to the Court of Appeal from any decision, judgment, order, opinion, direction or determination of the Court in a Division constituted by an associate Judge, registrar or other officer".

1. Neither party drew the Court's attention to the power or powers Harrison AsJ was exercising in hearing the principal proceedings or the application for the working out orders. Those powers may relevantly be found in SCR Part 60 and SCR Schedule D, Part 3 and the common law which deals with associate Judges.

1. Pursuant to SCR 60.1A(1)(b)(iii) an associate Judge may, save to the extent limited in the manner described in SCR 60.1A(4), exercise the powers of the Court under the UCPR. That was the jurisdiction the primary judge exercised when she reviewed the Registrar's decision pursuant to UCPR 49.19, there being no restriction on that power falling within SCR 60.1A(4).

1. Further, pursuant to SCR 60.1A(1)(c) an associate Judge may exercise the powers of the Court in respect of the matters mentioned in Part 3 of Schedule D. Such an associate Judge may also exercise the powers of the Court for the purposes of, and in respect of all matters incidental to, the exercise of the powers under subrule (1): SCR 60.1A(6).

1. SCR, Schedule D, Part 3, cl 17A empowers an associate Judge to exercise the powers of the Court with respect to:

"Trial (except with a jury) of proceedings in the Common Law Division on a claim in which:

(a) damages are claimed in respect of the death of or personal injuries to any person ..."

1. It is arguable that, as Mr El-Saeidy's claim included a claim for personal injuries arising from the alleged breach of the residential tenancy agreement, the associate Judge was exercising the jurisdiction conferred by cl 17A. Her Honour may also have been acting pursuant to cl 4 which relates to a trial or hearing of proceedings referred to an associate Judge by an order of a Judge, but it was not apparent from the papers that such a referral had occurred. The possibility that it was a cl 17A matter is sufficient for present purposes.

1. Pursuant to UCPR 49.4 an appeal lies "to the Supreme Court from any decision of an associate Judge of the Supreme Court, except in any case where an appeal lies to the Court of Appeal."

1. SCR Part 60, Division 4 deals with appeals to this Court. SCR 60.17 which appears in Division 4 relevantly provides:

"An appeal shall lie to the Court of Appeal in accordance with section 101 and 103 of the Act, subject however to the leave of the Court of Appeal in any case to which subsections (2) and (4) of section 101 apply, from any decision of the Court in a Division constituted by an associate Judge...

(a) upon a trial pursuant to Schedule D Part 3 paragraphs ... 17A

...

(k) where the decision of the associate Judge is a final decision other than:

(i) a decision on an application for a summary judgment, or

(ii) a decision on an application for a summary dismissal of proceedings."

1. As s 104 of the SCA is expressed to be "subject to the rules", SCR 60.17 prevails over it: Charara v Commissioner of Police [2008] NSWCA 22 (at [104]) per Campbell JA (Giles and McColl JJA concurring).

1. Section 101(2) of the SCA provides that an appeal shall not lie to the Court of Appeal except by leave, in certain specified instances, relevantly from:

"(e) an interlocutory judgment or order in proceedings in the Court,

...

(r) a final judgment or order in proceedings of the Court, other than an appeal:

(i) that involves a matter at issue amounting to or of the value of $100,000 or more, or

(ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more.."

1. In our view, the reference in the introductory words of SCR 60.17 to SCA s 101(2) make it apparent that an appeal by leave lies to this Court from an interlocutory decision made upon a trial pursuant to Schedule D Part 3 paragraph 17A. The working out orders fall within that class, even though the trial per se had concluded with the entry of orders in December 2011. It would be otherwise if there had been no trial and the orders sought to be challenged were interlocutory only: Hampson v Maleski [2014] NSWCA 155.

1. The effect of these provisions for present purposes in our view is that an appeal lies to this Court, by leave, from either an interlocutory decision or final judgment or order upon a trial pursuant to Schedule D Part 3, paragraph 17A or a final decision of an associate Judge (save one of the nature referred to in s 101(2)(r)(i) or (ii) neither of which is presently relevant).

The nature of the orders the subject of challenge

1. Mr El-Saeidy submits that the orders from which he seeks leave to appeal are final. Even if that were the case, he would still require leave to appeal by virtue of SCR 60.17. It is important to determine the nature of the working out orders as the approach of the Court on an application for leave to appeal from an order which effectively determines, with finality, the legal rights of the parties may differ from one which is interlocutory in the sense we explain below (see Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221 (at 226ff); Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; (1981) 147 CLR 246 (at 248).

1. The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them, a question answered by determining whether the legal, rather than the practical, effect of the judgment is final or not: Re Luck [2003] HCA 70; (2003) 78 ALJR 177 (at [4]) per McHugh ACJ, Gummow and Heydon JJ; Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 (at 225); Carr v Finance Corporation of Australia Ltd [No 1] (at 248).

1. An order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may conclude the fate of the particular application in which it is made, is interlocutory only: Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 (at 439 - 440) per Taylor J (Owen J agreeing). It is not to the point, as Windeyer J explained in Hall v Nominal Defendant (at 443) to "ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation".

1. Finally we observe there cannot be an order which is neither final nor interlocutory so that if an order is not final, it must be interlocutory: Standard Discount Co v La Grange (1877) 3 CPD 67 (at 69 - 70) per Bramwell LJ, cited by Windeyer J in Hall v Nominal Defendant (at 443).

1. The working out orders did not finally determine the rights of Mr El-Saeidy and Housing. Those rights had been finally determined in December 2011. The working out orders, albeit in some cases expressed as declarations, merely concluded the fate of the particular application in which they were made, and, accordingly, were interlocutory only.

Competence: the Review motion

1. In our view, the order Harrison AsJ made dismissing the Review motion was interlocutory as it concluded only the fate of that particular application. Further, there is no clause in SCR 60.17 which permits an appeal to this Court from a decision of an associate Judge exercising the court's review function pursuant to UCPR 49.19. That review exercise did not form part of the trial the associate Judge had conducted for the purposes of, inter alia, determining Mr El-Saeidy's claim for damages. Rather it was purely an interlocutory decision disposing of an application he had made to the Registrar anterior to the hearing of the 2013 motions. Accordingly, in our view, Mr El-Saeidy's application for leave to appeal from that part of El-Saeidy 4 is incompetent.

Competence: the working out orders

1. We have already referred briefly to the power the associate Judge was exercising in entertaining the variation applications consequent upon the entry of the final orders in December 2011. We would add to that the observation that the working out jurisdiction extends to modifying a final order's operation to take account of some subsequent change of circumstance: Phillips v Walsh (1990) 20 NSWLR 206 (at 209 - 210) per McLelland J. Further, on such an application, "a party [may] ask the court or tribunal to deal with a matter arising out of the orders already made; generally, to resolve an argument about the detail of action already ordered to be undertaken: Comcare v Grimes [1994] FCA 1054; (1994) 50 FCR 60 (at 62) per Wilcox J. Housing presumably invoked the latter aspect of the working out jurisdiction in seeking the declaratory relief the subject of its 13 August 2013 motion. However, the "working out" jurisdiction cannot be used to vary a final order: Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 (at 598) per McPherson SPJ.

1. As is apparent from our earlier discussion, the applications the associate Judge entertained after entering the final orders in December 2011 have been made in the working out jurisdiction. It is arguable that although entered after the entry of judgment on 12 December 2011, they were made in the exercise of the incidental powers of the Court pursuant to SCR 60.1A(6). However, they concluded only the fate of the particular application in each case and, accordingly, were interlocutory. Accordingly Mr El-Saeidy required leave to appeal: UCPR 60.17(a); SCA s 101(2)(e).

1. Thus the application for leave to appeal to this Court is competent, subject to the timing issue Housing raised in its competence motion.

Competence: the timing issue

1. El-Saeidy 4 was determined on 28 October 2013 - the material date: UCPR 51.2. That day was not counted for the purpose of reckoning the time within which to seek leave to appeal: UCPR 1.11(2).

1. Housing submitted the application for leave to appeal was out of time by virtue of UCPR 49.8, which requires an appeal from a decision of an associate Judge of the Supreme Court under UCPR 49.4 to be instituted by filing a notice of motion within 28 days after the material date. However, in our view, that rule refers to the institution of an appeal to a single judge of the court, not to this Court to which the provisions of UCPR 60.17 apply. The timing for the summons seeking leave to appeal to this Court was governed by UCPR 51.

1. Mr El-Saeidy filed a notice of intention to appeal on 25 November 2013. Such a document constitutes notice that the applicant intends to file either a notice of appeal, or if necessary, a summons seeking leave to appeal: UCPR 51.6. It was filed within the 28 days limited by UCPR 51.8. He was then required to file and serve a summons seeking leave to appeal within 3 months after the material date: UCPR 51.10; UCPR 51.9(1)(a). Housing accepts the time for the taking of that step expired on 28 January 2014; s 21, Interpretation Act 1987 (NSW) (definition of "month").

1. As we have explained (see [34]) although the summons seeking leave to appeal was filed on that day, it was deficient and Mr El-Saeidy was given leave to repair the situation by the next day and to serve the documents then filed by 29 January 2014. Housing faintly suggested that the Deputy Registrar did not have power to grant that indulgence. That is not correct. Chief Justice Spigelman delegated the power, inter alia, to extend time pursuant to UCPR 51.6 to the Registrar of the Court of Appeal (including a person acting as the registrar) in exercise of his powers under s 13(1) of the Civil Procedure Act 2005 (NSW) (the "CPA"): Delegation to the Court of Appeal Registrar pursuant to s 13 of the Civil Procedure Act 2005, 2 January 2008. We would infer that on 28 January 2014 the Deputy Registrar acted as Registrar to extend the time for the filing and service of the Summons seeking leave to appeal and the draft notice of appeal. Accordingly we would dismiss Housing's competence notice of motion.

Application for leave to appeal

1. At the outset of the hearing, the Court asked Mr Jakimoski, Mr El-Saeidy's solicitor, whether it was the fact, as it appeared from proceedings concerning the same parties in the Common Law Division, that Garling J had ordered Mr El-Saeidy to move back into the premises on 7 April 2014. He confirmed that that order had been made and that Mr El-Saeidy had complied with it. The Court asked Mr Jakimoski what was the utility of the application for leave to appeal having regard to the applicant's return to the premises. He submitted that the application focused on Mr El-Saeidy's contention that the topsoil of the front and backyard of the premises was still contaminated. This concession as to the ambit of the proposed appeal assists in understanding Mr El-Saeidy's written submissions (confusingly largely set out in his proposed notice of appeal) which refer in several places to the "premises" an expression apt to include the dwelling house on the property as well as the yard.

1. In Collier v Lancer (No 2) [2013] NSWCA 186 Ward and Leeming JJA summarised the general principles governing the question of a grant of leave to appeal to this Court as follows:

"[7] While there are no exhaustive or rigid rules of practice or criteria governing the grant of leave to appeal (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170), leave should be granted only where there are substantial reasons to allow an appellate review (Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564), such as where there is an error of principle which, if uncorrected, will result in substantial injustice (Minogue v Williams (2000) 60 ALD 366; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756; Niemann v Electronic Industries Ltd [1978] VR 431; Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401).

[8] Where there is no question of principle (and particularly where there is only a small amount in dispute), leave to appeal will usually be refused (Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Zelden Sewell Henamast Pty Ltd [2011] NSWCA 56; Dunn v Ross Lamb Motors [1978] 1 NSWLR 26). As Bathurst CJ said in The Age Company Ltd v Liu [2013] NSWCA 26 (at [13]), with the agreement of Beazley and McColl JJA, 'Generally speaking, it is only appropriate to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable'".

Consideration

1. Mr El-Saeidy's overriding complaint is that there has been a substantial miscarriage of justice warranting a grant of leave to appeal because the associate Judge did not afford him a "fair trial". This is because, he contends, the only evidence her Honour considered was that of Housing's expert and, too, because her Honour did not allow him to test Housing's expert evidence.

1. Mr El-Saeidy's draft notice of appeal identifies 10 proposed grounds of appeal although some of the "grounds" are more in the nature of submissions.

1. Mr El-Saeidy's primary complaint in his first proposed ground of appeal is that the associate Judge denied him procedural fairness because she refused to allow him to rely upon two reports of Mr De Silva dated 11 October 2013 and three affidavits sworn by Mr Jakimoski one on 11 October 2013 and two on 16 October 2013 (the "excluded evidence"). All three of Mr Jakimoski's affidavits were said to have been served on Housing at 2.40pm on 16 October 2013, the day before the hearing. This proposed ground of appeal is inter-related with his proposed ground 2 that he was denied a fair trial because her Honour did not allow him to rely on the excluded evidence.

1. Mr Jakimoski's 11 October 2013 affidavit annexed two reports from Mr De Silva both dated 11 October 2013. The two 16 October 2013 affidavits sought to explain why, according to Mr Jakimoski, the timing of service of Mr De Silva's affidavits was consequent upon non-compliance by Housing with a timetable to file and serve evidence, we assume, in relation to the hearing to take place before the associate Judge on 17 October 2013.

1. Mr El-Saeidy contended that the excluded evidence responded to evidence Housing filed out of time and without leave on 13 September 2013. Mr El-Saeidy's contention that Housing had served its evidence out of time appears to be based on the proposition that he personally received an affidavit attaching Mr Clifton's report on 15 September 2013. However, as Housing submitted, he accepted when he appeared before the Registrar on 8 October 2013, that Housing emailed the documents to Mr Ardino, the solicitor then acting for him, on 5 September 2013.

1. It is not clear why Housing forwarded a copy of the sealed affidavit annexing Mr Clifton's report, to Mr El-Saeidy by letter dated 13 September 2013. It is apparent that Mr Ardino ceased to act for Mr El-Saeidy at some stage and Mr Jakimoski became Mr El-Saeidy's solicitor from 11 October 2013. The precise chronology is not apparent, however it appears from Mr El-Saeidy's affidavit of 27 September 2013, which was relied upon below, that Mr Ardino had notified Ms Hawkins, Mr El-Saeidy's counsel, in late September 2013 that he was considering withdrawing from the matter. On 20 September 2013 Mr De Silva asked Ms Hawkins to seek a postponement of the case (his email said "fixed for 28 August 2013" but that is clearly a mistake) so that he could complete his re-analysis in accordance with the Guidelines of some soil samples (email from Mr De Silva to Ms Hawkins, annexure "B" to Mr El-Saeidy's affidavit of 27 September 2013).

1. However it is apparent that Mr El Saeidy was legally represented whether by solicitor or counsel from at least 5 September 2013 until 27 September 2013, during which period those representing him ought to have arranged for Mr De Silva to respond to Mr Clifton's report provided on 5 September 2013 by 28 September 2013. Instead they filed the motion seeking an extension of time to file his evidence. As is apparent from what we have earlier outlined, the associate Judge did not accept that Housing had defaulted in service of Mr Clifton's report: El-Saeidy 4 (at [41]). Finally on this point we would observe that the forwarding of Mr Clifton's report to Mr El-Saeidy on 13 September 2013 appears to be a red herring.

1. Mr El-Saeidy's proposed ground 3 seeks to complain that the associate Judge erred in relying on Mr Clifton's analysis of soil samples when his sampling did not comply with a document described as Guideline on Investigation Levels for Soil and Groundwater - NEPM (2013)/WA Guidelines 2009 (the "Guidelines"). It appears from the associate Judge's reasons (at [66]) that the Guidelines commenced on 25 May 2013, after the clearance certificate was issued in February 2013. Mr El-Saeidy's counsel first produced them in court on 17 October 2013 just before the luncheon adjournment after the associate Judge had spent some time taking joint evidence from Mr Clifton and Mr De Silva.

1. The primary judge accepted (at [66]) that Mr Clifton's testing was undertaken in accordance with guidelines in force prior to 25 May 2013. Her Honour considered the Guidelines and concluded that, notwithstanding the statement therein that a large sample size may improve the likelihood of identifying asbestos material greater than 2mm fraction, that was not relevant as the asbestos found in samples Mr De Silva had taken prior to February 2013 had been in bonded form for which both the current and old guidelines permitted a presence of 0.01% and that such asbestos was considered safe if left alone: El-Saeidy 4 (at [71]).

1. Mr El-Saeidy's submissions addressing proposed ground 3 did not explain how the application of the Guidelines might have led to a different outcome before the associate Judge. However, in relation to his proposed ground 4 (a complaint that the associate Judge's finding that "the inside of the property and the top soil of the front and back yards was decontaminated in the absence of evidence of that fact"), Mr El-Saeidy contended that Mr Clifton and Mr De Silva had given evidence before the associate Judge that if the Guidelines had been applied at the time of the soil sampling, the premises were not safe for occupation.

1. If by "premises" Mr El-Saeidy intended to refer to both the house and the yard (as is apparent from proposed ground 4), we observe that it is apparent from El-Saeidy 4 (at [30]), that as at 22 August 2013 the only outstanding issue as between the experts related to the efficacy of the remediation work carried out in the yard, not within the premises. As we have said, Mr Jakimoski said that was the only extant remediation issue Mr El Saeidy sought to pursue an appeal. Mr Clifton's report of 3 September 2013 dealt with that issue, taking samples from the locations detailed on a document referred to as Mr De Silva's site sample location plan, all of which were found to be free of asbestos fibres.

1. Returning to proposed ground 3, we do not read the transcript to which Mr El-Saeidy refers as recording an agreement between the experts in the terms for which he contends. Rather, it is apparent that Mr Clifton, in particular, gave a conditional answer, dependent upon the assumption that Mr De Silva's results in his 11 October 2013 report were correct, that to the extent they referred to samples Mr De Silva took in December 2012, it could not be said that "the premises" were clear of asbestos (T/s 17/10/13, p 16). However, Mr De Silva's samples were taken before the remediation works were completed whereas, as might be expected, Mr Clifton's were taken after that process.

1. Other proposed complaints Mr El-Saeidy flagged in relation to proposed ground 4 concerned technical complaints about the certificates admitted below without objection or as to objections taken below but overruled by the associate Judge (T/s 17/10/13 46). In our view, such rulings do not raise an arguable ground of appeal.

1. The associate Judge determined the issue of whether the premises (including the yard) were free of asbestos posing any danger to health by reference to Mr Clifton's reports, the Guidelines and a report Mr De Silva prepared dated 7 February 2013. It is apparent that there was evidence before her Honour capable of supporting her conclusion. In our view, having regard to the observations we make about the concept of a "fair trial" in the light of ss56 - 60 of the CPA Mr El-Saeidy has not demonstrated any substantial reason to grant leave to appeal in respect of this issue.

1. Proposed ground 5 complains that the associate Judge erred in disregarding or giving insufficient weight to, in substance, evidence that the premises (meaning we would infer for reasons earlier given, the yard) had not been fully remediated or cleared of hazardous material. This ground, to the extent that it can be identified from the "particulars" given of that proposed ground in the draft notice of appeal, substantially, if not entirely, covers the same complaint as was made in relation to proposed ground 4 and our reasons in relation to that ground apply to it too.

1. Proposed ground 6 is a bald assertion that the associate Judge unduly interfered in the conduct of the hearing. It is sufficient to say that, from our perusal of the transcript before her Honour, there is no basis for this assertion. Rather, it appears that her Honour did her best to deal with the difficult situation created by Mr El-Saeidy's failure to comply with orders concerning preparation for the hearing but, at the same time, tried to accommodate the concern that he not be ordered to relocate to the premises unless, on the balance of probabilities, her Honour could be satisfied that the premises were free of asbestos contamination.

1. Mr El-Saeidy seeks to complain, in proposed ground 7, about Housing's failure to comply with a subpoena to produce documents he asserts were critical to his case that the soil at the premises was contaminated (this complaint is also raised as part of proposed ground 1). There was no reference in El-Saeidy 4 to any issue concerning a subpoena. It appears that the complaint Mr El-Saeidy seeks to agitate concerning a subpoena arises from the Registrar's dismissal of that part of his 27 September 2013 motion which sought to enforce compliance with that subpoena. There is no appeal, even by leave, from a decision of a Registrar in a Division of the court to this Court: cf section 48, SCA. This aspect of Mr El-Saeidy's application for leave to appeal is, accordingly, incompetent.

1. Finally, in proposed grounds 8 - 10 Mr El-Saeidy seeks to complain about Decision 5 (see [37(5)] above). This complaint appears to have no utility having regard to the fact that Mr El-Saeidy has been relocated to the premises. The submissions group 2 other complaints under this heading, though there is no apparent relationship with Decision 5. They are complaints that the associate Judge erred in determining what were "safe" levels under the Guidelines and in "failing to accept unopposed evidence of the Plaintiff's expert". We have already dealt with the integrity of the associate Judge's conclusion on the safety of the premises (including the yard). As to the latter point, on the assumption that the evidence from Mr De Silva is that in his 11 October 2013 report, we have explained why the associate Judge did not err in rejecting Mr El-Saeidy's application to rely upon it.

Fair trial

1. Mr El-Saeidy drew attention to Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 (at [39]), where Young JA (Beazley JA and Handley AJA agreeing) referred to Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, where "the High Court made it clear that the right to receive a fair trial according to law is a fundamental right and it is the overriding duty of a trial judge to ensure that the trial is fair" and added "[a] fortiori is this so where a litigant in person is involved". It is not clear whether he relied upon that passage to emphasise the former proposition (for which no authority is needed) or to draw attention to Young JA's emphasis on the application of the principle where a litigant in person is involved. Suffice it to say that Mr El-Saeidy appears to have had legal representation at all relevant times in the proceedings the subject of the application for leave to appeal.

1. The right to a fair trial is not one-sided. The associate Judge had to deal with Mr El-Saeidy's applications to rely upon the excluded evidence in the framework of ss 56 - 60, Part 6, Div 1 of the CPA stating, and dealing with the implementation of, the overriding purpose of the CPA and of rules of court - facilitatation of "the just, quick and cheap resolution of the real issues in the proceedings" in their application to civil proceedings.

1. As is manifest from ss 56 - 60, CPA, and as was clearly recognised in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 ("Aon"), the "just determination of the proceedings" and "the dictates of justice" refer to the effect of the management of the proceedings on all parties to the litigation and, as appropriate, to the efficient use of available judicial and administrative resources and the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties: s 57((1)(c) and (d), CPA. An order for costs is not a panacea for the injustice caused to an opponent by orders acceding to tardy applications to rely upon evidence or adjournments: Aon (at [99] - [101]). Thus, while the CPA requires the court to have regard to the just determination of the proceedings (s 57(1)(a)) and to have regard to the dictates of justice in making any order of a procedural nature (s 58(1)), such resolution does not require "that a party be permitted to raise any arguable case at any point in the proceedings": Aon (at [98]).

1. Barrett JA (Ward and Leeming JJA agreeing) explained the effect of ss 56 - 60, CPA in Kelly v Mina [2014] NSWCA 9 (at [48]) as follows:

"... Part 6 Div 1 of the Civil Procedure Act made substantive and important changes to the law so that considerations of promptness and efficiency in the conduct of civil litigation are afforded a new and special importance which may sometimes provoke a sense of injustice in a party who has failed to proceed with despatch: see, for example, Dennis v Australian Broadcasting Corporation [2008] NSWCA 37; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160] - [161]; Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230; Halpin v Lumley General Insurance Ltd [2009] NSWCA 372; Bi v Mourad [2010] NSWCA 17; Richards v Cornford (No 3) [2010] NSWCA 134."

1. While Mr El-Saeidy's proposed grounds of appeal are numerous, in substance they fundamentally rest on demonstrating error in the ruling not to allow him to rely upon the excluded evidence. Although the associate Judge did not expressly refer to the CPA provisions in ruling on Mr El-Saeidy's application to rely upon the excluded evidence, her Honour clearly applied their purport. In our view her Honour did so in an unexceptional manner such as disclosed no arguable error which might attract a grant of leave to appeal.

1. In considering whether to accede to Mr El-Saeidy's application for an adjournment or to rely upon the excluded evidence, her Honour took into consideration (El-Saeidy 4 (at [41])) his failure to comply with directions concerning the filing of evidence, his late service of what he asserted were critical Guidelines going to the issue of asbestos presence on the premises (El-Saeidy 4 (at [42])) and the prejudice to Housing if he was to be permitted the relief he sought.

1. Contrary to Mr El-Saeidy's submissions that Housing did not demonstrate prejudice arising from acceding to his application to rely upon the excluded evidence and/or to grant an adjournment, the primary judge held (El-Saeidy 4 (at [43] - [44])) that Housing would be unable to address on 17 October 2013 the issues which the excluded evidence raised, partly because it had not had the opportunity to retest samples to meet the excluded evidence. Her Honour also took into consideration (at [44]), the "the amount of court time and legal expenses incurred and [that] to permit another adjournment would be too onerous".

1. The associate Judge rejected Mr El-Saeidy's explanation that the delay in preparing the excluded evidence lay in Housing's default: El-Saeidy (at [41]). Rather, her Honour concluded that his delinquency in this respect lay in his failure to take the opportunity afforded him to file and serve that evidence. This finding was clearly open to her Honour.

1. Her Honour also took into account the effect on both parties of determining the matter on the basis of the evidence, including the Guidelines, albeit that she had not permitted Mr El-Saeidy to rely upon the latter as a basis for undermining Mr Clifton's reports. She was satisfied taking those Guidelines into account as well as after considering Mr De Silva's report of February 2013, the agreement reached at the joint conference in August 2013 and a perusal of Mr Clifton's report addressing the concerns raised in that conference that the premises were safe for occupation.

1. Finally, in determining the time Mr El-Saeidy should be afforded to relocate to the premises, the associate Judge took into consideration the burden placed upon Housing by Mr El-Saeidy in effect occupying two of its scarce housing resources. While that position was clearly justified during the period the premises were being remediated, that time was long past. Her Honour concluded that since that time both Housing and the court's limited resources had been used unmeritoriously in a manner which had taken a "disproportionate amount of court time". Her Honour was in the best position to make that judgment, having heard both the trial and managed the case thereafter on the numerous interlocutory applications to which we have referred.

1. In our view Mr El-Saeidy has not demonstrated that his proposed appeal involves any issue of principle or question of public importance, nor is it apparent that any injustice has occurred by reason of any error in the primary judgment. Leave to appeal should be refused.

Orders

1. We make the following orders:

(1)   Application for leave to appeal dismissed with costs.

(2)   The respondent's notice of motion filed on 27 February 2014 dismissed with costs.

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Decision last updated: 30 May 2014