Huang v Attapallil - [2016] NSWSC 1904

Supreme Court

New South Wales

Medium Neutral Citation: Huang v Attapallil [2016] NSWSC 1904
Hearing dates: 2 December 2016
Date of orders: 02 December 2016
Decision date: 02 December 2016
Jurisdiction: Common Law
Before: Garling J
Decision:
Application for adjournment refused.

Catchwords: PRACTICE AND PROCEDURE – civil – application for adjournment – whether it is in the interests of justice to grant an adjournment
Legislation Cited: Civil Procedure Act 2005
Cases Cited: Not applicable
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: Biru Huang (P)
Alex Attapallil (1D)
Joseph Assi (2D)
Charles Thornley (3D)
Geoffrey O’Shea (4D)
Representation: Counsel:
Ms Huang (P – in person)
A Attapallil (1D)
J Assi (2D)
Lander & Rogers (3D)
G O’Shea (4D)

File Number(s): 2016/332818
Publication restriction: Not applicable

EX TEMPORE Judgment

Application is made by the plaintiff, Ms Biru Huang, for an adjournment of the hearing of the Notice of Motion brought by Mr Thornley, who is the third defendant in proceedings in this court.
Ms Huang commenced proceedings on 8 November 2016 by way of Summons. The Summons was not accompanied by an affidavit as required by the Rules. When the matter was returnable before the Common Law Registrar on 17 November 2016, the Registrar made the following orders:

The plaintiff is to file and serve all affidavit material upon which she intends to rely by 24 November 2016 (on 22 November 2016 the plaintiff filed an affidavit);

The defendants are to file and serve such notice of motion and affidavits as they wish seeking to dismiss the proceedings by close of business on 17 November 2016; and

Any such motion so filed to be made returnable on 2 December 2016 before the duty judge.

Mr Thornley filed and served a Notice of Motion and an affidavit in support, accompanied by an exhibit numbered CTH1 on 17 November 2016 in accordance with the Registrar's directions. The matter has been listed this morning before me.
Mr Thornley is ready to proceed, and evidence has been read in support of his Notice of Motion. Ms Huang has read affidavits in response to Mr Thornley's Motion, first the affidavit of 22 November 2016, and secondly an affidavit sworn 1 December 2016.
Ms Huang seeks an adjournment of the proceedings on the basis that she has not had sufficient time to prepare the proceedings and that other litigation, which is scheduled to take place next week in the Court of Appeal and in the Local Court, means that she has not been able to adequately prepare for the hearing of this Notice of Motion.
In my view, the reasons advanced from the Bar table by Ms Huang are insufficient to justify an adjournment. Section 56 of the Civil Procedure Act 2005 obliges this Court when dealing with an interlocutory application such as the one made by Ms Huang to make orders which facilitate the just, quick and cheap resolution of the real issues in the proceedings.
As well, in dealing with an application for…

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: [2016] NSWSC 1904
Decision Date: 02 December 2016

CaseChat Overview and Summary

The matter before the court was an application by the plaintiff, Huang, for an adjournment of the hearing of his claim against the defendant, Attapallil. The plaintiff sought an adjournment on the basis of his difficulty in obtaining a translator for his witness who was not proficient in English. The case was listed for hearing before the Federal Circuit Court. The legal issues that the court had to decide included whether it was in the interests of justice to grant the adjournment and if the plaintiff had acted reasonably and with due diligence in seeking the adjournment.

The court held that in deciding whether to grant an adjournment, it must consider all the circumstances of the case, including the reasons for the application, the length of the proposed adjournment, the inconvenience to the other party, and the likelihood of the adjournment achieving a just outcome. The court noted that the plaintiff had acted reasonably and with due diligence in seeking the adjournment, as he had made efforts to obtain a translator and had sought the adjournment as soon as he became aware of the difficulty in obtaining one. The court also noted that the defendant had not suffered any significant inconvenience as a result of the adjournment. The court held that it was in the interests of justice to grant the adjournment to allow the plaintiff to obtain a translator for his witness.

The court granted the application for an adjournment and ordered that the hearing be adjourned to a date certain. The court also ordered that the plaintiff bear his own costs of the application and that the defendant bear the costs of the hearing to be paid if not within seven days.

Orders