Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Jamal v Commissioner of Police (NSW) [2016] NSWCA 345 Hearing dates: 8 December 2016 Decision date: 08 December 2016 Before: Basten JA; Payne JA Decision: (1) Grant the applicant's request for an adjournment of the hearing fixed for 8 December 2016. (2) Direct that the Registrar fix a date for the hearing of the application for leave to appeal in February 2017. (3) The respondent's costs of today to be the Commissioner's costs in the leave application. Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – applicant unfit to attend court –adjournment sought – applicant not consenting to leave application being dealt with on the papers – Uniform Civil Procedure Rules 2005 (NSW), r 51.15 – court empowered to dispense with requirement for parties' consent – Civil Procedure Act 2005 (NSW), s 14 Legislation Cited: Civil Procedure Act 2005 (NSW), s 14 Uniform Civil Procedure Rules 2005 (NSW), r 51.15 Category: Procedural and other rulings Parties: Jon Jamal (Applicant) NSW Police Commissioner (First Respondent) Christopher Stiles (Second Respondent) J W Box (Third Respondent) Representation: Counsel: Ms E Raper Solicitors: Applicant self-represented Bartier Perry (Respondents) File Number(s): 2016/188326 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2016] NSWSC 658 Date of Decision: 26 May 2016 Before: Harrison AsJ File Number(s): 2014/369907 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: On 14 April 2015 the New South Wales Civil and Administrative Tribunal ("NCAT") dismissed a complaint lodged by Jon Jamal under the Anti-Discrimination Act 1977 (NSW). Mr Jamal brought proceedings in the supervisory jurisdiction of the Court, seeking to review the decision of NCAT. On 26 May 2016 Harrison AsJ made orders dismissing those proceedings. Mr Jamal has sought leave to appeal from that judgment. 2. The application for leave to appeal was listed before this Court on 29 November 2016. The week before that hearing, Mr Jamal sought an adjournment on medical grounds. The written application was supported by a medical certificate from a general practitioner, expressed in the most cursory and uninformative terms. The application was refused. 3. On the morning of Tuesday, 29 November, Mr Jamal attended Court wearing a neck brace. He remained in the back of the Court for a significant period whilst another matter was heard. He then left the courtroom and was apparently found lying on the ground outside the Court. Security officers called paramedics to attend and he was taken away in an ambulance. 4. The Court adjourned the leave application until Thursday, 8 December 2016, for hearing. The Court further directed that the applicant provide to the Registrar a medical certificate giving a full account of his condition and prognosis and indicating whether he would be able to attend on 8 December for the hearing of his leave application. Both parties were directed to indicate whether, if the matter could not be heard on 8 December for reasons which warranted an adjournment of the matter on that date, it could then be dealt with on the papers. 5. The applicant provided a letter from a doctor with a practice in Concord stating that Mr Jamal has had "a flare up of his known degenerative cervical and lumbar disc disease and his long term rheumatoid arthritis." It stated that he had had "a recent fall requiring hospital attention on 29/11/16." He was said to be "in constant pain, poor dexterity and has poor mobility." The doctor further opined that Mr Jamal needed "some time to get his symptoms under control and hence is not fit to attend court for the next month." 6. This certificate provided an unsatisfactory basis for a further adjournment for a number of reasons. The term "flare up" was imprecise; there was no indication as to the normal state of health; no indication as to any results of his admission to hospital (if it occurred) on 29 November; no indication that he was on medication and no indication as to the likelihood of a change in his fitness to attend court in the future. 7. On 6 December 2016 the Registrar requested Mr Jamal, by email, to indicate whether he would consent to his leave application being dealt with on the papers. By a somewhat cryptic response on the same day, he asked for the case to be relisted for hearing. 8. The solicitor for the respondent Commissioner notified the Registrar on 7 December 2016 that the respondent did not oppose the adjournment application. 9. In those circumstances, the Court has determined that the adjournment application should be granted and the matter relisted for hearing early in the Court year, commencing in February 2017. 10. It would not be satisfactory if an applicant who is unwilling or unable to obtain representation (in this case it may be assumed that Mr Jamal is unable to obtain representation) were able to obtain indefinite adjournments on the basis that he or she is not fit to attend court and cannot provide any firm indication as to when he or she will be fit, and does not consent to an application for leave to appeal being dealt with on the papers. While there is express power for the Court to deal with a leave application otherwise than in open court, the rules require that, where the application for leave is opposed, each active party must consent: Uniform Civil Procedure Rules 2005 (NSW), r 51.15. 11. Pursuant to s 14 of the Civil Procedure Act 2005 (NSW) the court may, in relation to particular civil proceedings, dispense with any requirement of the rules of court where it is satisfied that it is appropriate to do so in the circumstances of the particular case. If the applicant is unfit to attend court and conduct his application, either in person or through a qualified legal representative, on the date fixed in February 2017, and does not consent to the matter being dealt with without the attendance of any person, the Court will consider whether it should dispense with the requirements of r 51.15 and determine the matter in his absence and without further submissions from either party. 12. The Court now makes the following orders and direction: (1) Grant the applicant's request for an adjournment of the hearing fixed for 8 December 2016. (2) Direct that the Registrar fix a date for the hearing of the application for leave to appeal in February 2017. (3) The respondent's costs of today to be the Commissioner's costs in the leave application. ********** Amendments 08 December 2016 - Counsel's appearance on coversheet 08 December 2016 - Counsel 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: 08 December 2016