HOSSEINI v Felav Pty Ltd - [2010] FMCA 126

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOSSEINI v FELAV PTY LTD

[2010] FMCA 126

PRACTICE & PROCEDURE – Refusal of adjournment for the convenience of counsel one month before date fixed for hearing 2 months prior.

Haset Sali v SPC Ltd (1993) HCA 47, (1993) 116 ALR 625
Robert Giarrusso and Transport Union Workers of Australia v Ampol Petroleum (Vic) Pty Ltd [1994] IRCA 123
Automotive, Food, Metals Engineering, Printing and Kindred Industries Union of Workers [2005] WASCA 157
Dordev v Cowan & Anor [2006] VSCA 254
R v Ngo [2001] NSWSC 887

Applicant:

ELHAM HOSSEINI

Respondent:

FELAV PTY LTD T/AS M & P & M NANOVICH
ACN 009 297 527

File Number:

PEG 207 of 2009

Judgment of:

Raphael FM

Hearing date:

17 February 2010

Date of Last Submission:

17 February 2010

Delivered at:

Sydney

Delivered on:

17 February 2010

REPRESENTATION

Solicitors for the Applicant:

Downings Legal

Solicitors for the Respondent:

Paiker and Overmeire

ORDERS

Application for adjournment dismissed.
Respondent’s time for filing affidavits extended until 1 March 2010.
Applicant to pay the respondent’s costs assessed in the sum of $300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

PEG 207 of 2009

ELHAM HOSSEINI

Applicant

And

FELAV PTY LTD T/AS M & P & M NANOVIC

ACN 009 297 527

Respondent

REASONS FOR JUDGMENT

On 15 December 2009 this case was set down for a special fixture to be heard on 15 March and 16 March 2010. At the time the case was set down the parties were given a timetable for the filing of evidence and the completion of other interlocutory matters. It was not suggested at that time that the date would be inconvenient to anybody or that the necessary filing of evidence could not be undertaken. The hearing is to be conducted in Perth by myself, a Federal Magistrate from Sydney, because the Federal Magistrate based in Perth has a conflict in relation to the case and has rightly excused himself from it.
On or about 15 February 2010 the court received a fax from the applicant’s solicitors confirming a telephone conversation that had taken place on 11 February advising that the applicant’s solicitors wished to vacate the hearing date on the grounds of the unavailability of counsel. I arranged for a special directions hearing to take place on 17 February.
I have no evidence as to why counsel is unavailable other than what has been told to me by Ms Pereira, a solicitor, from the bar table. No explanation has been given as to whether or not that date was inconvenient on 8 December, or whether the inconvenience is a recent one. Apparently, she says, counsel has other cases on that day.
Adjourning cases that have been set down for a fixed date should only be done where the court has been persuaded that there are proper reasons for so doing. The unavailability of counsel for unexplained reasons is not one of those reasons. In Haset Sali v SPC Ltd (1993) HCA 47, (1993) 116 ALR…

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: [2010] FMCA 126
Decision Date: 17 February 2010

CaseChat Overview and Summary

The case of Hosseini v Felav Pty Ltd was heard in the Federal Circuit Court of Australia. The applicant, Hosseini, sought an adjournment in the proceedings against the respondent, Felav Pty Ltd, due to alleged delays in obtaining legal representation. The dispute centred around the applicant’s request for more time to file affidavits and the respondent's opposition to this request. The court was required to determine whether an adjournment was warranted under the circumstances and, if not, what the appropriate consequences should be for the applicant’s failure to proceed in a timely manner.

The legal issues the court considered were whether the applicant had a sufficient basis for requesting an adjournment and, if the adjournment was denied, what the appropriate sanction would be. The court examined the rules governing adjournments and the principles of judicial economy and fairness in the administration of justice. It was also necessary to assess whether the delay caused any prejudice to the respondent and the extent to which the applicant was responsible for the delay.

The court found that the applicant had not demonstrated a compelling reason for the requested adjournment. The reasons provided for the delay in obtaining legal representation were deemed insufficient to warrant an adjournment. The court emphasised the importance of proceeding with litigation in a timely manner and noted that the applicant had been aware of the need to file affidavits for some time. The court ordered that the application for adjournment be dismissed and extended the respondent’s time for filing affidavits until 1 March 2010. Additionally, the applicant was ordered to pay the respondent’s costs, assessed at $300. This decision underscored the court's commitment to the efficient and fair administration of justice, penalising the applicant for failing to meet procedural requirements.

Orders

Orders of the court

Application for adjournment dismissed.

Respondent’s time for filing affidavits extended until 1 March 2010.

Applicant to pay the respondent’s costs assessed in the sum of $300.

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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