New South Wales Supreme Court CITATION : Qureshi v Haider [2006] NSWSC 1200 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 3 November 2006 JUDGMENT OF : Gzell J EX TEMPORE JUDGMENT DATE : 11/03/2006 DECISION : Leave to file amended defence granted. Trial vacated. Defendant ordered to pay plaintiff's costs of application and costs thrown away by adjournment. CATCHWORDS : PROCEDURE - Miscellaneous Procedural Matters - Proceedings as to whether defendant divorced under Pakistani law - Late application to amend defence to put in issue matters raised by an amended statement of claim - Plaintiff claimed prejudice from withdrawal of implied consession by failure to plead to amendment in that areas of investigation in Pakistan had not been followed and should be followed - Whether leave should be granted in likelihood of a need to vacate the trial Uniform Civil Procedural Rules 2005 LEGISLATION CITED : Muslim Family Ordinance 1961 (Pakistan) Family Law Act 1975 (Cth) Civil Procedure Act 2005 CASES CITED : Queensland v J L Holdings Pty Ltd (1996-1997) 189 CLR 146 PARTIES : Ghulam Rabbani Adib Qureshi - Plaintiff Tahira Haider - Defendant FILE NUMBER(S) : SC 107711/05 COUNSEL : Mr C Harris SC - Plaintiff Mr D Baran - Defendant SOLICITORS : Domini Stamfords - Plaintiff Buttar, Caldwell & Co - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GZELL J FRIDAY 3 NOVEMBER 2006 107711/05 GHULAM RABBANI ADIB QURESHI v TAHIRA HAIDER EX TEMPORE JUDGMENT 1 An application is made for leave to file an amended defence. The hearing of the matter has been set down for two days on Thursday of next week. There was a defence to an original statement of claim. It was set out in some 11 short paragraphs. The amended statement of claim added clauses 5A, 5B, 5C. 5A was in the following terms: "On 13 July 2004 the defendant was: (i) ordinarily resident in; (ii) domiciled in and/or; (iii) a national of the Islamic Republic of Pakistan within the meaning of section 104(3)(a), (c) and (d) repectively of the Family Law Act 1975." 2 No amended defence was filed within the 14 days prescribed under the Uniform Civil Procedural Rules 2005, r 19.1. 3 The document for which leave is now sought sets out in subparagraphs (a) to (l) a denial of paragraph 5A of the amended statement of claim. 4 I should say that the plaintiff in these proceedings is the attorney of the parents of a deceased and seeks to obtain a grant of administration. The deceased died intestate. The defendant was married to the deceased. The plaintiff claims she was divorced from him under the Islamic law of Pakistan with the consequence that the parents take on the intestacy. Hence, the significance of the issues that I have canvassed. 5 Mr Baran, who appears for the defendant/applicant, says that the plaintiff is not taken by surprise or prejudiced because residence or domicile in Pakistan or in Australia, cohabitation, and failure to participate in Arbitration Council proceedings in terms of s 7(4) of the Muslim Family Ordinance 1961 of Pakistan were known to be in issue. 6 Mr Harris SC, who appears for the plaintiff, says that if leave is granted to file the amended defence, his client is prejudiced because there are areas of investigation that have not been made thus far because of the implied concession constituted by the failure to plead to the new par 5A of the amended statement of claim that may yield further evidence from Pakistan that should be followed if leave is granted. Mr Baran challenges that statement and submits that the plaintiff should disclose an outline of the areas of investigation said to be necessary to the plaintiff's case. 7 When a responsible senior counsel states to me that there are matters that should be investigated for the proper presentation of the plaintiff's case, I accept that statement. I reject the submission that it is only if an outline of the investigation is given that I should regard the plaintiff as prejudiced. 8 Clause 3(k) of the document sought to be filed as the amended defence is in these terms: "The Defendant further pleads that she did not participate in a reconciliation proceeding as constituted by an Arbitration Council pursuant to section 7(4) of the Ordinance and further pleads no steps involving reconciliation were undertaken or if they were the Defendant did not have notice or involvement. That the Defendant further pleads that if an Arbitration Council proceeding or any proceeding occurred involving the dissolution of the marriage the Defendant had no notice, no right of challenge, no opportunity to make submissions and was not given the right to be heard such that in all the circumstances she was denied procedural fairness or natural justice. In the alternative, the divorce would be manifestly contrary to public policy." 9 Section 104(4) of the Family Law Act 1975 (Cth) is in the following terms: "A divorce or annulment of a marriage, or the legal separation of the parties to a marriage, shall not be recognized as valid by virtue of subsection (3) where: (a) under the common law rules of private international law, recognition of its validity would be refused on the ground that a party to the marriage had been denied natural justice; or (b) recognition would manifestly be contrary to public policy." 10 The similarity in the pleading to the provision in s 104(4) of the Family Law Act 1975 (Cth) is obvious. Mr Harris says that in order to meet any argument under that provision there is evidence that can only be obtained in Pakistan that would be relevant to that issue. 11 That the plaintiff assumed that the only matter in issue was the validity of the divorce according to Pakistani law is clear from the terms of the written submissions lodged with my Associate on behalf of the plaintiff in accordance with my directions. 12 Notwithstanding the lateness of the application to file an amended defence, the principle that I must consider in an application such as this is a question of justice between the parties. In Queensland v J L Holdings Pty Ltd (1996-1997) 189 CLR 146 the High Court considered that Federal Court case management principles should not have outweighed the interests of justice between the parties and the judge at first instance should have allowed an amendment to the defence which would likely lead to the trial dates being vacated. 13 Mr Harris has foreshadowed an application to vacate the trial dates should the amended defence be filed. 14 While this Court is now able to take account of management principles under the Civil Procedure Act 2005, s 57, justice between the parties is still an important factor. Any prejudice to the other party is usually ameliorated by an order as to costs. 15 In my view, in order that the specific issues between the parties should be articulated, it is appropriate for me to give leave to file in court the amended defence. 16 The submission has been made that I ought not vacate the hearing but should use the two days that have been set aside to hear such of the matters as can be dealt with in that time. That course of action is in my view fraught with difficulty. There may well be issues that arise as a result of the plaintiff's investigations of the application of s 104(4) of the Family Law Act 1975 (Cth). There may be other issues that arise as a result of further investigations in Pakistan that would alter the manner in which the plaintiff's case is led and cross-examination of defendant witnesses is conducted. I therefore reject that suggestion. 17 I give leave to file in court an amended defence in the form initialled by me, dated by me and placed with the papers. I vacate the hearing before me for two days commencing on Thursday 9 November 2006. I order that the defendant pay the plaintiff's costs of today and the plaintiff's costs thrown away by the adjournment. I order that the previous orders with respect to the return of subpoenas be varied by making them returnable before the Registrar at 9 am on Thursday 9 November 2006. I stand the matter over before the registrar at 9.30 am on Friday 10 November 2005. I close the ECM court. ********** 15/11/2006 - Wrong file number on coversheet - Paragraph(s) Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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