Supreme Court New South Wales Medium Neutral Citation: Aboriginal Housing Company Ltd v Kaye-Engel (No. 5) [2015] NSWSC 39 Hearing dates: 10 February 2015 Date of orders: 10 February 2015 Decision date: 10 February 2015 Jurisdiction: Common Law Before: Davies J Decision: 1. Defendant's Notice of Motion dated 6 February 2015 is dismissed. 2. Hearing dates commencing 23 February 2015 confirmed. 3. Defendant granted leave to serve her affidavit dated 19 December 2014 such affidavit to be served on Plaintiff by close of business on 10 February 2015. 4. Vary the Usual Order for Hearing to permit the Court book to be filed 5 days before hearing. Plaintiff granted leave to file its own court book if there is difficulty filing a joint court book. 5. Vary the Usual Order for Hearing to permit the Plaintiff to file its own Statement of Issues in lieu of a Joint Statement of Issues.. 6. Liberty to apply to Davies J on 2 days' notice up to 23 February 2015. Catchwords: PROCEDURE – application by Defendant to vacate hearing date – Defendant seeks Legal Aid - application by unrepresented party for leave to issue subpoenas – failure of Defendant to comply with orders – no basis shown for subpoenas to issue – Defendant received previous pro bono assistance – applications refused Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Aboriginal Housing Company Ltd v Kaye-Engel [2013] NSWSC 1906 Aboriginal Housing Company Ltd v Kaye-Engel (No.2) [2014] NSWSC 717 Category: Procedural and other rulings Parties: Aboriginal Housing Company Ltd (Plaintiff) Natalie Kaye-Engel (Defendant) Representation: Counsel: A Scotting (Plaintiff) In person (Defendant) Solicitors: Ashurst Australia (Plaintiff) No solicitor (Defendant) File Number(s): 2011/82867 Judgment 1. The Defendant applies, by Notice of Motion dated 6 February 2015, to vacate the hearing of this matter fixed for 23 February for three days. She also seeks leave to issue subpoenas and she requires a person who is an officer of the Plaintiff to be added to the proceedings. 2. The proceedings were commenced by the Defendant on 21 March 2011. She appeared for herself and it was difficult to ascertain from the documents filed precisely the case the Defendant was trying to make out at the time. That resulted in the proceedings being entirely reconstituted by Kunc J in the Equity Division on 14 June 2013. These matters have been detailed in various judgments of the Court. 3. The effect of Kunc J's orders were that the Aboriginal Housing Company became the Plaintiff in the proceedings seeking possession of the property in which Ms Kaye-Engel lives, and the claims made by Ms Kaye-Engel would be contained in a defence and any cross-claim filed by her in answer to the claim made by the Housing Company. 4. On 18 September 2013 the Registrar directed that Ms Kaye-Engel was to serve her evidence in response to the Housing Company's evidence by 11 December 2013. No such evidence was served. 5. On 11 December 2013 she filed and served a Notice of Motion seeking pro bono assistance in the matter. On 13 December 2013 I made orders directing her to be referred to the Registrar for referral for pro bono assistance: Aboriginal Housing Company Ltd v Kaye-Engel [2013] NSWSC 1906. She subsequently obtained the assistance of Ms Patricia Lane of counsel who drafted various pleadings for her. The pleadings for the matter were then put into proper order. 6. On 16 May 2014 Ms Lane indicated that she was not in a position to provide further pro bono assistance to Ms Kaye-Engel. 7. Ms Kaye-Engel brought a further Motion before me seeking a further referral for pro bono assistance. On 30 May 2014 I directed that she be referred again to the Registrar to obtain further pro bono assistance: Aboriginal Housing Company Ltd v Kaye-Engel (No.2) [2014] NSWSC 717. Unfortunately that pro bono assistance has not been forthcoming. 8. During the course of 2014 directions were made at various times for her again to serve her evidence in the matter. On 25 July 2014 I directed that she was to serve her evidence by 22 August. She did not do so. 9. On 29 August 2014 the matter was before the Registrar and the Registrar extended the time for her to serve her evidence to 26 September 2014. She did not serve her evidence by that time. 10. The matter came before Button J on 1 October 2014. There was no appearance by Ms Kaye-Engel at that time. Button J stood the matter over to my list on 12 November. Ms Kaye-Engel was notified that the matter had been stood over to that day. 11. When the matter came on for directions on 12 November 2014 Ms Kaye- Engel did not appear. Notwithstanding that non-appearance I extended the time for her to serve her evidence to 19 December 2014. I directed that she be notified of those orders and that was done. 12. The matter was fixed at that time for hearing on 23 February 2015. I stood the proceedings over to today for further directions just to check on its state of readiness for the hearing on 23 February. 13. On 6 February Ms Kaye-Engel filed the Notice of Motion which I am now dealing with. In support of it she annexes an application that she has made to Legal Aid on 6 February 2015. She says that she has made this further application to Legal Aid because she was advised by the Bar Association that she ought to do so when nobody was available to provide the pro bono assistance that it had been hoped would be available for her. 14. Ms Kaye-Engel says in addition that she needs to subpoena certain persons to give evidence on her behalf. She also requires Mr Mundine to be present and joined as a Plaintiff because she considers that he is the central figure in the proceedings. It has been made clear to her in the past that there was no proper basis for her desire to join Mr Mundine and another person called Kay Tysson or Kay Bilyana to the proceedings. 15. As at today Ms Kaye-Engel has served no further evidence in accordance with the directions that were commenced to be made on 18 September 2013. 16. The evidence filed by her to date does not provide any basis for granting her leave to issue subpoenas to the persons she desires to give evidence on her behalf. Because she acts for herself that leave is required. Even if she did not act for herself there would need to be basis provided for oral evidence to be given pursuant to subpoenas served when directions have been made that the evidence in the matter is to be by way of affidavit. There is no evidence that these witnesses have declined to provide affidavits. Leave to file and serve subpoenas is refused. 17. When these proceedings were commenced as long ago as March 2011 and where there has been an ongoing dispute about the rent or occupation fee paid to the Housing Company for the property in which she lives, I consider it is entirely inappropriate to vacate the hearing on 23 February. 18. Every assistance has been offered by the Court to Ms Kaye-Engel to be legally advised in the matter. She has, in addition to the orders made for pro bono assistance, been given advice about representatives from Legal Aid who attend at the Court on a Monday to advise persons in her position. She has in the past applied for Legal Aid unsuccessfully. There is nothing before me to suggest that the present application is any more likely to be successful. 19. The proceedings must be brought to finality. I have regard to sections 56 to 60 of the Civil Procedure Act 2005 (NSW). That the proceedings are unresolved after a four year period is quite unacceptable. 20. No good reason has been offered for the failure by Ms Kaye-Engel to serve evidence in her case. She has told me in the past, and she told me again today, that she suffers from a number of illnesses. However, I do not have any medical evidence before me to suggest that her medical conditions have rendered her incapable of serving any evidence that is necessary for her to defend this case and bring the cross-claim that has been filed. Nor is there any medical evidence to explain her absences from directions hearings. 21. In those circumstances the Notice of Motion filed 6 February 2015 is dismissed. 22. I confirm the hearing date of 23 February 2015. 23. On 12 November I imposed a guillotine order on the service of evidence by Ms Kaye-Engel to provide that any evidence that she served after 19 December 2014 could not be relied upon without my leave or the leave of the trial judge. Since she has not served any such evidence it will be necessary for her to apply to the trial judge for leave if she chooses to seek to rely on such evidence. 24. I will vary the terms of the usual order for hearing so that the court book need only be filed five working days before the hearing date. References to joint statements of issues are varied so that the Plaintiff is to file a statement of the issues that it believes exist between the parties. I do this because it does not seem feasible that any joint documents in that regard can be provided. If there are difficulties with obtaining the Defendant's consent or agreement in relation to any aspect of the court book, the Plaintiff should file its own court book. 25. The parties have liberty to approach me on two days' notice up to 23 February. 26. At the conclusion of these reasons Ms Kaye-Engel informed me that she had tried to file an affidavit in the registry on 19 December 2014 but it was rejected. That was no doubt because no order had been made for its filing, only its service. She did not serve it at that time or at all. Her only explanation was that she did not understand procedures. In the circumstances I will give her leave to serve this affidavit on the Plaintiff's solicitor by close of business today. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 February 2015