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." 1. 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. 2. 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.