Hussain v Shahidulalam (No 2) [2017] NSWSC 1639

Supreme Court New South Wales

Medium Neutral Citation: Hussain v Shahidulalam (No 2) [2017] NSWSC 1639 Hearing dates: 21 and 23 November 2017 Date of orders: 23 November 2017 Decision date: 23 November 2017 Jurisdiction: Common Law Before: Walton J Decision: Adjournment application refused and notice of motion dismissed. Catchwords: CIVIL PROCEDURE – adjournment application – proximity to hearing date – consideration of the plaintiff's health condition – consideration of absence of legal representation – application dismissed Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 Hussain v Shahidulalam [2017] NSWSC 1564 Category: Procedural and other rulings Parties: Mohammad Munir Hussain (Plaintiff) Md Shahidulalam (Defendant) Representation: Solicitors: Self-represented (Plaintiff) Executive Legal (Defendant) File Number(s): 2017/47400

EX TEMPORE Judgment – REVISED 1. HIS HONOUR: By way of a notice of motion filed 17 November 2017, the plaintiff, Mr Mohammad Munir Hussain, sought an adjournment of the proceedings ("the application") brought by him (by a summons filed on 14 February 2017) for an appeal from the decision of the Local Court of NSW made on 18 August 2016 setting aside a default judgment made on 28 September 2005 ("the appeal"). The hearing of the appeal was listed for today. 2. The application for an adjournment was part heard on 21 November last and adjourned to permit the plaintiff a further opportunity to consider the affidavits relied upon by Mr Mohammad Khan, who appeared for the defendant, Mr Md Shahidulalam, dated 21 September and 24 October 2017, and, as it turns out, a skeleton outline of submissions provided by Mr Khan on behalf of the defendant, notwithstanding that the affidavits in question had been served on the applicant on 21 September and 24 October 2017, respectively, and the 24 October affidavit had been adduced in evidence in the proceedings before R A Hulme J in this matter on 7 November 2017 (I note for completeness that Mr Khan ultimately advised that he would only adduce into evidence the affidavit of 24 October 2017). The hearing of the application, as programmed, continued before the Court today. 3. During the course of hearing the application on 21 November 2017, Mr Hussain was advised that the adjournment application would be decided today, after hearing the balance of the evidence and argument and, if unsuccessful, the matter would proceed to the hearing of the appeal. 4. The matter which was before R A Hulme J on 7 November last concerned an application pursuant to r 7.36 of the Uniform Civil Procedure Rules for referral to a barrister or solicitor on the pro bono panel for legal assistance and what the defendant described as an "informal" adjournment application of the hearing which had been fixed today. In the judgment of R A Hulme J delivered on that same day in Hussain v Shahidulalam [2017] NSWSC 1564 ("Hussain No 1"), his Honour rejected both applications. His Honour confirmed the hearing date as being today's date and effectively provided Mr Hussain with a further opportunity to put his case for the appeal before the scheduled hearing date, by the making of further directions regarding the filing of evidence and materials by both parties. 5. Rather than filing and serving any material of that character by the date fixed by his Honour, namely, Wednesday 15 November 2017, Mr Hussain filed the present application with a supporting affidavit (which I note did not come into evidence). In support of the adjournment application, Mr Hussain relied on two affidavits, one filed in Court on 21 November 2017 and another filed during the adjournment of the application, dated 22 November 2017, which was received formally into evidence today. .