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Hussain v Shahidulalam

Hussain v Shahidulalam

Case [2018] NSWSC 1742 14 November 2018

Appeal

Natural Justice & Procedural Fairness

Interlocutory Orders

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Hussain v Shahidulalam [2018] NSWSC 1742
Hearing dates: 10 May 2018
Date of orders: 14 November 2018
Decision date: 14 November 2018
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   The plaintiff is granted an extension of time such as would allow the appeal to be filed on the date it was filed, namely, 14 February 2017;

(2)   Leave to appeal refused;

(3)   To the extent necessary, and not covered by the refusal of leave to appeal, appeal dismissed;
(4)   The plaintiff shall pay the defendant’s costs of and incidental to the proceedings in this Court.
Catchwords: APPEAL – alleged denial of natural justice – summary dismissal of plaintiff’s proceedings – abundant opportunity to prepare and to present case – alleged medical difficulties in attending court – not accepted by Local Court – interlocutory decision – leave required – jurisdictional issue without merit – leave to appeal refused and, to the extent necessary, appeal dismissed.
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Family Law Act 1975 (Cth)
Limitation Act 1969 (NSW), s 54(2)(a)
Local Court Act 2007 (NSW) ss 39, 40
Supreme Court of Judicature Act 1873 (UK) Rules
Uniform Civil Procedure Rules 2005 (NSW), r 12.7
Cases Cited: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126
Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389; [1996] HCA 36
Haider v JP Morgan Holdings Aust Ltd Trading as JP Morgan Operations Australia Ltd [2007] NSWCA 158
Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36;
House v The King (1936) 55 CLR 499; [1936] HCA 40
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104
M v R (1994) 181 CLR 487; [1994] HCA 63
Morris v R (1987) 163 CLR 454; [1987] HCA 50;
Ormwave Pty Ltd v Smith [2007] NSWCA 210
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1
R v R (1989) 18 NSWLR 74;
Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47
Sullivan v Department of Transport (1978) 20 ALR 323
Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272
Texts Cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM–V), (5th ed, 2013, American Psychiatric Association)
Category: Procedural and other rulings
Parties: Mohammad Munir Hussain (Plaintiff)
Md Shahidulalam (Defendant)
Representation: Solicitors:
Self-represented (Plaintiff)
Executive Legal (Defendant)

File Number(s): 2017/47400
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Civil

Date of Decision:

18 August 2016

Before:

Greenwood LCM

File Number(s):

2005/361305

Judgment

HIS HONOUR: By Summons filed on 14 February 2017, the plaintiff, Mohammad Munir Hussain, seeks to appeal the decision of the Local Court made on 18 August 2016 dismissing his claim as a plaintiff before the Local Court against Md Shahidulalam, the applicant…

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.

Continue reading Hussain v Shahidulalam

Details

AGLC: Hussain v Shahidulalam [2018] NSWSC 1742
Case: [2018] NSWSC 1742
Decision Date: 14 November 2018

CaseChat Overview and Summary

The appeal in Hussain v Shahidulalam involves the plaintiff, Hussain, who sought to challenge the summary dismissal of his proceedings against the defendant, Shahidulalam. The proceedings were dismissed on the basis that Hussain had failed to attend court despite being provided with ample opportunity to prepare and present his case. Hussain's absence was attributed to medical difficulties which were not accepted by the Local Court. The plaintiff appealed the Local Court's interlocutory decision, seeking leave to challenge the dismissal on the grounds that it constituted a denial of natural justice.

The primary legal issue before the court was whether the Local Court's decision to summarily dismiss the plaintiff's proceedings without further opportunity to be heard amounted to a denial of natural justice. The court also considered whether the plaintiff's medical difficulties provided a valid reason for his non-attendance and failure to present his case. The court had to determine if the plaintiff's right to be heard was adequately safeguarded and if the dismissal was justified under the circumstances presented.

The court held that the plaintiff had been given a sufficient opportunity to prepare and present his case, and thus the dismissal did not constitute a denial of natural justice. The court did not accept the plaintiff's claim of medical difficulties as a valid reason for his non-attendance, finding that the plaintiff had not provided adequate evidence to support his claim. Consequently, the court refused the plaintiff leave to appeal, finding that the jurisdictional issue raised lacked merit. The appeal was dismissed to the extent necessary, affirming the Local Court's decision.

Orders