Gomez v Kuhadas
[2014] FCA 1186
•3 November 2014
FEDERAL COURT OF AUSTRALIA
Gomez v Kuhadas [2014] FCA 1186
Citation: Gomez v Kuhadas [2014] FCA 1186 Appeal from: Kuhadas v Gomez [2014] FCCA 1130 Parties: KEVIN BENNETT GOMEZ v VIVEKANANDA KUHADAS File number: NSD 622 of 2014 Judge: GLEESON J Date of judgment: 3 November 2014 Legislation: Federal Court of Australia Act 1976 (Cth) s 37M Date of hearing: 3 November 2014 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 13 Counsel for the Appellant: The appellant appeared in person by telephone link Counsel for the Respondent: The respondent appeared in person
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESNSD DISTRICT REGISTRY
GENERAL DIVISION
NSD 622 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: KEVIN BENNETT GOMEZ
AppellantAND: VIVEKANANDA KUHADAS
Respondent
JUDGE:
GLEESON J
DATE OF ORDER:
3 NOVEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The hearing of this matter be adjourned to a date to be fixed during the February 2015 Full Court sitting period.
2.The appellant file two copies and serve on the respondent an appropriate number of copies of Part C of the Appeal Book on or before 24 November 2014.
3.The appellant file and serve a written outline of submissions on or before 24 November 2014.
4.The appellant pay forthwith any disbursements thrown away by the respondent as a result of the adjournment.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESNSD DISTRICT REGISTRY
GENERAL DIVISION
NSD 622 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: KEVIN BENNETT GOMEZ
AppellantAND: VIVEKANANDA KUHADAS
Respondent
JUDGE:
GLEESON J
DATE:
3 NOVEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant has made an application to adjourn the hearing of the appeal in this matter. The appeal was listed for hearing on 3 November 2014. The application was opposed. The evidence comprised an affidavit sworn by each of the parties. Mr Gomez was granted leave to appear by telephone from Singapore.
The notice of appeal was filed on 20 June 2014. On 1 August 2014, I conducted a directions hearing. The appellant was represented by a solicitor from Sparke Helmore Lawyers. The respondent appeared unrepresented. At the directions hearing, the matter was listed for hearing on a date to be fixed during the November 2014 Full Court Sitting period, between 3 and 28 November 2014. Directions were made for the preparation of appeal books and submissions.
The directions made on 1 August 2014 required the appellant to file and serve on the respondent its outline of submissions 20 business days before the hearing. Also on 1 August 2014, the appellant filed Part A and Part B of the appeal books.
By letter dated 1 September 2014, the parties were notified that the matter was listed for hearing on 3 November 2014 for half a day. Accordingly, the appellant was required to file and serve his submissions by Tuesday 7 October 2014. The appellant did not file his submissions.
On 17 October 2014, the appellant filed a notice of termination of lawyer’s retainer.
Part C of the appeal book was due to be filed on 27 October 2014. The appellant did not lodge Part C of the appeal book.
In his affidavit, the appellant gave the following reason for seeking an adjournment:
[30] In all sincerity, I am asking for an extension of time so that I can familiarise myself with the relevant case laws regarding “offer and acceptance”, “compromise settlements” and “due diligence”…
[31] It was hard to let go of such esteemed counsel however, my decision to discharge Sparke Helmore Lawyers was partly due to their failure to address/pre-empt where the respondent’s untruths were leading; and partly due to balancing the rationale of the costs involved in taking this matter to trial versus the likelihood that the respondent would abscond again.
[33] I assure this honourable court that this is not an elaborate scheme to orchestrate a delay. Nor is it my intention to abuse any court processes.
As a general rule, where proceedings have been regularly fixed for hearing, with due notice to the affected parties, they should be heard on the appointed date. The late withdrawal of legal representatives would not ordinarily warrant an adjournment.
The reason given by the appellant for the adjournment application is not acceptable because there is:
(1)no adequate explanation for the failure to lodge written submissions;
(2)no adequate explanation for the failure to lodge Part C of the appeal books; and
(3)no explanation for the failure to prepare in the available time.
Section 37M of the Federal Court of Australia Act 1976 (Cth) provides:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.(2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the court;
(b) the efficient use of the judicial and administrative resources available for the purposes of the court;
(c) the efficient disposal of the court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
The power to grant an adjournment is a discretionary power to be exercised in accordance with the overarching purpose described in s 37M.
Although the reasons that were put forward for seeking the adjournment are unsatisfactory, I take into account the following matters:
(1)The appellant did file Part A and Part B of the appeal books;
(2)I am satisfied that the appellant seeks to raise substantial issues on the appeal from the decision of the primary judge;
(3)It would be a very significant detriment to the appellant to refuse to grant the adjournment in circumstances where he is clearly not prepared to proceed today; and
(4)Although it is extremely inconvenient and unsatisfactory for the respondent that an adjournment should be granted, he does live in Sydney and does not appear to have suffered any substantial costs as a result of an adjournment of this matter.
Accordingly, I will adjourn the matter to a date to be fixed during the February 2015 Full Court sitting period. I will direct Mr Gomez to file and serve Part C of the appeal books on or before Monday, 24 November 2014, and I will also direct him to file and serve an outline of written submissions on or before 24 November 2014. I will also order Mr Gomez to pay forthwith any disbursements that Mr Kuhadas had paid that were wasted as a result of the adjournment, noting that at the moment I am not aware of any such costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson. Associate:
Dated: 5 November 2014
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