Qasim v Owners Strata Plan 61034

[2022] NSWSC 1604

Supreme Court

New South Wales

Medium Neutral Citation:	Qasim v Owners Strata Plan 61034 [2022] NSWSC 1604
Hearing dates:	27 October 2022
Date of orders:	27 October 2022
Decision date:	27 October 2022
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	The application for adjournment is refused.
Catchwords:	PRACTICE AND PROCEDURE – adjournment – application by plaintiff on morning of hearing – no basis – evidence provided inadequate – no utility in granting adjournment – application for adjournment refused
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Category:	Procedural rulings
Parties:	Shaheen Qasim (Appellant) Owners Strata Plan 61034 (Respondent)
Representation:	Counsel: M Maconachie (Respondent) Solicitors: Shaheen Qasim (Self-represented) Maher Legal (Defendant)
File Number(s):	2021/00136133
Publication restriction:	Nil

Judgment – revised extempore

1. Listed for hearing today is a proceedings on Summons filed on 14 May 2021 by Dr Qasim.

2. Dr Qasim appears today for herself and has made an oral application for adjournment of the hearing. I should note that the proceedings have had a complex history, including early case management in the Registrar’s list in May, June and September 2021. A Notice of Motion to remedy wrongly named defendants was filed and listed for hearing on 19 October 2021 and this was dealt with by Acting Justice Schmidt, and the wrongly named defendants were removed from the proceedings.

3. Subsequent to that there were further directions hearings before various Registrars, followed in March 2022 by a hearing before Justice Dhanji, that led to the Owners of Strata Plan 61034 being joined as the defendant to the proceedings.

4. I should note that Dr Qasim appeared for herself on 16 March 2022 before Justice Dhanji and he succinctly and clearly outlined for Dr Qasim’s benefit, the nature of the dispute that this Court has to determine on the Summons, and noting clearly that it is limited to whether there was an error of law involved in the decision by a Local Court Magistrate to dismiss the application made by Dr Qasim seeking orders setting aside default judgment entered in that court.

5. There were other case management hearings, including one in May 2022, where the Registrar made orders as to what evidence needed to be filed by Dr Qasim to support her Summons.

6. In September 2022 Justice Campbell heard an application by the defendant to dismiss the proceedings due to failure to comply with the Registrar’s orders, arguing that the failure comprised a failure to prosecute the proceedings with due dispatch.

7. Justice Campbell was not persuaded that the proceedings should be dismissed, observing that the matter would soon be heard on its merits.

8. That is what is listed for hearing today before me. Two days ago my Chambers were contacted by email by Dr Qasim to the effect that she wanted an adjournment of three months. My Associate advised at my request that any adjournment application had to be made by Notice of Motion with supporting affidavit material.

9. No Notice of Motion or supporting affidavit material has been filed or served, however a medical certificate of Dr Aroney from Bondi Junction Medical Centre dated 25 October 2022 was supplied by email. I have marked that Certificate Exhibit A on the oral adjournment application Dr Qasim has made today. Dr Aroney’s Certificate states as follows:

“Stating that has had a cough last one month. Nil medical treatment. Does not feel fully recovered. Therefore she has been unable to fully prepare her legal case. She is requesting adjournment from 27 October for three months.”

10. No other evidence was provided in support of the application for adjournment, although Dr Qasim indicated that she did “start to prepare” some affidavit material but did not complete it. Dr Qasim stated from the bar table that she has been unwell for over a month and bedridden and that she could not get to a doctor’s appointment because of COVID-19 related concerns and the cough that she has had. She has been too unwell to instruct a barrister and to attend to preparation herself. She had sought legal advice in respect of the prior hearing before Justice Campbell. She has been unable to complete the affidavit she was working on yesterday. She feels that the certificate of Dr Aroney does provide a diagnosis but she is unable to have a full physical examination because of fear of COVID. Dr Qasim argued that she has a legitimate right to have “legal input”, and her difficulties were not planned and she needs an adjournment.

11. Counsel for the defendant, Mr Maconachie, opposed the application. He argued that Dr Aroney’s medical certificate does not give any diagnosis. That is a correct observation. He submitted that it does not indicate that the doctor has turned an independent mind to whether the plaintiff is in fact unable to appear. She is in fact here today. Mr Maconachie noted that the plaintiff has filed substantial written submissions this morning and those submissions and her presence today indicate that she is able to turn her mind to the issues relevant to the case. This Court should not countenance delay. A judge has been allocated to hear the matter today and to adjourn it would be wasting the Court’s allocated time.

Decision

12. Section 56 of the Civil Procedure Act2005 (NSW) (the Act) requires that in any decision made by the Court in civil proceedings, the Court must facilitate the just, quick and cheap resolution of the real issues in the proceedings. Subsection (2) of s 56 provides that the Court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by the rules, and when it interprets any provision of this Act or any such rule. The section goes on in subsection (3) to provide that a party to civil proceedings is under a duty to assist the Court to further the overriding purpose and to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court.

13. I pause here to observe that it seems to me that the defendant has taken steps and has done its best to keep the matter on track and to assist the Court with appropriate and succinct submissions, and to uphold the overriding purpose rule.

14. Section 57 of the Act provides that the Court, when furthering the overriding purpose, must consider the just determination of proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of proceedings, including bearing in mind other proceedings in the court and for it to be at a cost affordable to the respective parties.

15. Section 58 of the Act provides that the court must follow the dictates of justice, and when considering what are the dictates of justice in a particular case, have regard to the provisions of ss 56 and 57 and also to the matters listed in s 58(2)(b), namely, the degree of difficulty or complexity to which the issues in the proceedings give rise, the degree of expedition with which respective parties have approached the proceedings, including timeliness and interlocutory activities, the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the parties, the degree to which respective parties have fulfilled their s 56(3) duties and any use or opportunity taken by a party in the course of proceedings under the rules of the court regarding procedural matters.

16. I observe that the application made by the defendant and heard by Justice Campbell was one such attempt. It did not succeed, but it was made in my view, in good faith in an attempt to reduce costs and court time.

17. I must also consider the degree of injustice that would be suffered by respective parties as a consequence of any order or direction I make and any other things I consider relevant.

18. I have articulated the requirements of those provisions in detail for the assistance of Dr Qasim so she understands why I am making the decision I make now, which is to refuse her application for an adjournment.

19. The proceedings have been on foot for a significant period of time. The hearing date for today was given in May 2022, with clear instructions as to what would be required. In March 2022 Dr Qasim was given the benefit of a careful articulation of what was required for the hearing and the issues that would be dealt with in the form of remarks by Justice Dhanji which went well beyond what a judge of the Court is required to do. It was clearly offered to assist Dr Qasim, appearing as she was for herself at that point.

20. What will be different or would be achieved if adjournment was granted was not specified. All that would occur is a further three month delay.

21. In all the circumstances I am not satisfied that the dictates of justice are served by acceding to the adjournment application and the application is refused.

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Decision last updated: 29 November 2022