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. . BACKGROUND 1. The adjudication of the application will benefit from a short procedural history, which was conveniently set out in Hussain No 1 by R A Hulme J (at [4]-[17]), as follows: [4] The matter commenced on 24 August 2005 with a statement of claim filed in the Local Court by the plaintiff. The claim concerned a $15,000 loan that was, on his case, made to the defendant in 1998. It was asserted that there was a sum of about $12,000 outstanding in 2005. Default judgment was entered on 28 September 2005. [5] It is said that within the next ten years or so, various enforcement actions were commenced by the plaintiff, seemingly to no avail. [6] On 20 April 2015 the defendant filed a notice of motion to set aside the default judgment which was successful. The judgment was set aside on 14 May 2015. [7] It is unnecessary to recount all that happened thereafter but ultimately the matter was set down for hearing on 1 August 2016. On that date it appears from the evidence (not only from Mr Khan's affidavit but also from Mr Hussain's affidavit of 30 October 2017) that Mr Hussain appeared at Court but experienced a heart problem which resulted in him being taken to hospital by ambulance. For that reason the hearing on that date was unable to proceed. [8] Shortly afterwards, the defendant filed a notice of motion to dismiss the proceedings and the matter came before Magistrate Greenwood on 18 August 2016. Her Honour granted the application, dismissed the proceedings and ordered that the plaintiff pay the defendant's costs. I am told by Mr Khan from the Bar table that her Honour granted the application on a review of the merits of the case, and I am told she came to the view that it was lacking in merit; the term "vexatious" was also used. [9] In September 2016 Mr Hussain mistakenly commenced appeal proceedings in the District Court. I understand his explanation for this as being that he was given incorrect advice by Registry counter staff. On 30 January 2017 the matter was before the District Court. The summons was withdrawn and the plaintiff was ordered to pay the defendant's costs. [10] On 14 February 2017 the proceedings by way of appeal from the Local Court were commenced in this Court by the filing of a summons. The affidavit of the plaintiff filed with the summons discusses the circumstances of how the matter came to be dismissed in the Local Court on 18 August 2016. [11] The appeal to this Court is brought under the Local Court Act 2007 (NSW). Section 39 provides for appeals as of right from the Local Court sitting in its General Division (and I take these proceedings to have been in that division) but such appeal as of right is only available on a question of law. I do not understand this appeal to be concerned only with a question of law. It seems that the appeal is brought under s 40 on a ground that involves a question of mixed law and fact, but only with leave. [12] I gather - and I say that because it is not entirely clear - that Mr Hussain is asserting a denial of procedural fairness which seems likely to involve a mixed question of law and fact. [13] The matter has been before Registrar Bradford on about half a dozen occasions since the summons was filed. Orders have been made on various occasions for Mr Hussain to apply for transcripts of the Local Court proceedings and to file and serve affidavit evidence and a copy of any proposed amended summons. On 30 June 2017 the matter was listed for hearing on 23 November 2017… [16] On 24 August 2017 Mr Hussain filed the notice of motion seeking referral to pro bono lawyers. [17] Mr Khan, on behalf of the defendant, filed the notice of motion seeking dismissal or, alternatively, security for costs on 24 October 2017 1. Some brief supplementation, to his Honour's summary, might be provided: 1. Relevant to these proceedings, and to his R A Hulme J's deliberation, was the non-compliance with the orders of Registrar Bradford. In proceedings before R A Hulme J, his Honour was informed that the plaintiff had obtained the transcript of the Local Court proceedings, which I have been advised today had been filed in the proceedings. 2. Two further medical certificates and/or reports were tendered, in support of the application, and are described below. 3. The plaintiff gave evidence that he had an appointment with Legal Aid NSW on 27 November 2017 at 2pm. 1. I now briefly turn to the decision of R A Hulme J in Hussain No 1, which contained considerations pertinent to the circumstances presently before the Court. Hussain No 1 1. His Honour was informed by Mr Hussain, both in submissions from the Bar table, and the Mr Hussain's affidavit of 30 October 2017, that he is indigent. In his affidavit, Mr Hussain deposed that he had no regular income and had suffered "real financial hardship [in] engag[ing] a lawyer to represent [his] case". That evidence was accepted by his Honour. However, it was also noted that there were some inconsistencies with respect to what Mr Hussain had said about his financial circumstances in late 2015 to which I now turn. 2. On 3 December 2015, Mr Hussain was before Adamson J seeking pro bono referral in other proceedings. There, R A Hulme J observed, Mr Hussain had apparently informed her Honour that he had no assets other than his and his wife's interests in a company which owned three taxis. He informed her Honour, however, that the taxi business was no longer profitable. That evidence was found contrary to a subsequent affidavit affirmed by Mr Hussain on 9 December 2015 (six days after he appeared before Adamson J for the above matter), ) in which Mr Hussain deposed that he personally owned three taxi vehicles with a collective value of or around $70,000. As I have indicated, that much is derived from the judgment of R A Hulme J. 3. With regard to the pro bono panel referral for legal assistance, his Honour took into account the capacity for Mr Hussain to obtain legal assistance outside the pro bono scheme. His Honour was concerned that a referral would almost surely guarantee that the hearing on 23 November would not proceed and observed that it would seem unlikely that a lawyer could be found, who would be prepared to take on Mr Hussain's case and, within the next 16 days, have the time to confer with and advise Mr Hussain, potentially prepare the matter for hearing and appear at the same hearing. That prospect was quite doubtful. 4. His Honour was also mindful of the health problems experienced by Mr Hussain, to which I will return. It was noted that Mr Hussain indicated that the hearing date of 23 November 2017 had been set by Registrar Bradford so long in advance, because he took into account the health difficulties there referred to. 5. Whilst Mr Hussain complained of difficulties attending upon these proceedings, he brought an adjournment application, produced a number of affidavits (with the assistance of his wife) and appeared in these proceedings in support of that application, making coherent submissions. THE APPLICATION Plaintiff's Evidence and Submissions 1. The plaintiff tendered the following documents in support of his application, which shall be collectively referred to as "the medical evidence": 1. a medical certificate provided by Dr Aninda Banerjea (dated 20 November 2017); 2. a three document bundle, which consisted of two further medical certificates, provided by Dr Banerjea (dated 10 August 2017) and Dr Rajesh Brahmbhatt (dated 4 September 2017), and a St George Hospital Cardiac Catheterisation and Percutaneous Coronary Intervention report (dated 23 August 2017); and 3. two affidavits affirmed by the plaintiff dated 20 and 22 November 2017, respectively, together with annexures, which included, inter alia, email correspondence with respect to an upcoming appointment with Legal Aid NSW on 27 November 2017, a medical certificate provided by Dr Banerjea (dated 22 November 2017) and a letter provided by Registered Psychologist, Ms Zebunnissa Khan (dated 22 November 2017). 1. I will provide a brief summary of the medical evidence as follows: 1. On 10 August, Dr Banerjea, certified that the plaintiff had a "cardiac condition and PTSD and will be unfit for work/stressful activities from 10 August 2017 to 10 November 2017 inclusive". 2. On 4 September, Dr Brahmbhatt, stated the "plaintiff [had] under[gone] PCI and coronary artery stent insertion procedure after rota-artherectomy on 23 August 2017 at St George Public Hospital" and, accordingly, "is advised to avoid any stressful situation for next 3 months". 3. On 20 November, Dr Banerjea, certified that the plaintiff had "a cardiac condition and PTSD and will be unfit for work from 20 November 2017 to 20 February 2018 inclusive". 4. On 22 November, Dr Banerjea further advised: Mr Mohammad Hussain suffers from significant Ischaemic Heart Disease…also suffers from significant Mental Health concerns…In view of the current physical and mental health concerns, he has been advised to avoid any kind of stressful situations which can potentially exacerbate or worsen his condition. Any assistance provided to him keeping that into consideration would be much appreciated including rescheduling his court attendance for next year if possible. 1. On 22 November 2017, in a letter addressed "To Whom it May Concern", Ms Khan described Mr Hussain's psychological condition as being placed in the "extremely severe range for Depression, Anxiety and Stress." She advised that "it would be beneficial for the plaintiff to delay or postpone the legal matters in order to allow his physical and mental health to recover". 1. In the affidavit of 20 November 2017, the plaintiff recorded he lacked legal representation and had an incapacity at present to pay for legal fees. He also deposed that he had been taken to hospital by ambulance from the Local Court (no specific date, however, was provided as to when this occurred). 2. In the affidavit of 22 November 2017, the plaintiff responded to the defendant's affidavits that were tendered in Court on 21 November (this affidavit was also before R A Hulme J). There were essentially two grounds to the adjournment application. 3. First, it was submitted that the plaintiff's current lack of legal representation would result in procedural unfairness if the principal proceedings commenced on the confirmed hearing date, namely, today. The plaintiff submitted that his current health conditions had affected his ability to cope with the stress of litigation and it would be of assistance to him if he had a lawyer advising and appearing for him in the matter he perceived to be of a complex nature. The plaintiff had previously attempted to appoint a lawyer, but that such an action required a deposit to the lawyers trust account. Although he was refused a referral to the pro bono panel, he still sought legal assistance. Mr Hussain, as I have noted, has an appointment with Legal Aid on 27 November 2017. 4. Secondly, the plaintiff submitted that his mental and physical stress from the proceedings since 2005 have contributed to his deteriorating health circumstances. Further, his heart surgery on August 2017 has impinged and disadvantaged his participation in the proceedings. Defendant's Evidence and Submissions 1. The defendant relied upon three affidavits (together with annexures therein): 1. the affidavit of Mohammad Khan affirmed on 24 October 2017; 2. the plaintiff's affidavit in reply affirmed on 30 October 2017 (filed in the earlier proceedings); and 3. an affidavit of service affirmed by Mr Khan on 21 November 2017. 1. The defendant correctly identified that the application is one available to the plaintiff pursuant to s 66 of the Civil Procedure Act 2005 (NSW) as follows: (1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings. (2) If a judicial officer is not available at the time appointed for the hearing of any proceedings, a registrar may adjourn, to a later time on the same day or to a later specified day, any matters listed for hearing by the judicial officer at the appointed time. 1. It is also correct to say that the power needs to be exercised in light of the overriding purpose of the ss 56 and 57 of the Civil Procedure Act as follows: 56 Overriding Purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3): (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. (6) For the purposes of this section, a person has a "relevant interest" in civil proceedings if the person: (a) provides financial assistance or other assistance to any party to the proceedings, and (b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings. Note : Examples of persons who may have a relevant interest are insurers and persons who fund litigation. 57 Objects of Case Management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 1. This case management must be undertaken in accordance with the dictates of justice: see Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 at [37] (per Campbell JA with whom Allsop ACJ and Young JA agreed). 2. The defendant submitted that there was an absence of any medical prognosis as may indicate, if an adjournment was granted, when the proceedings may be fit to resume at some future date. CONSIDERATION 1. At the outset, it may be observed there appears to be no significant material difference in the circumstances operating at the time of the refusal to grant a referral to the pro bono panel and an adjournment of the proceedings by R A Hulme J on 7 November, save for an appointment with Legal Aid and some further medical evidence that was annexed to the affidavit of the plaintiff dated 22 November 2017. 2. I turn initially to the two grounds relied upon by Mr Hussain. 3. The first ground for the adjournment is that Mr Hussain would be disadvantaged because of the absence of legal representation. He puts that both as a general proposition and as a contention advanced in conjunction with his submission as to his poor health. That is, he contends that a lawyer would assist in the proceedings going forward, notwithstanding his ill health, because the stress of the proceedings would be alleviated to some extent by the presence of the lawyer. 4. I do not accept this ground for a number of reasons: 1. The contention is advanced in the face of the judgment of R A Hulme J in which the application for pro bono assistance was refused in the light of essentially the same submission being made by Mr Hussain, and an express recognition by his Honour that the granting of the application would most likely lead to an adjournment of the hearing of the matter scheduled for today. 2. Mr Hussain's reliance upon his application for Legal Aid can be of no assistance. True it is the application was made after the determination by R A Hulme J. However, the application was only made on 10 November 2017, some nine months after the commencement of the proceedings. Further, it is insufficient for the proper conduct of these proceedings for Mr Hussain to rely upon the fact of a Legal Aid appointment which is scheduled after the confirmed date of hearing. 3. There has been ample time for Mr Hussain to engage legal representation, aside from the application for pro bono assistance. I do not consider that the defendant's reference to the engagement of a lawyer in the Local Court proceedings is a relevant factor because it would appear that the appearance was amicus curiae. However, what is relevant is the absence of evidence as to Mr Hussain's financial position, in this respect, notwithstanding that the basis for him not acquiring legal representation is that the lawyers he sought assistance from required payment by way of advance deposit. The only financial evidence in these proceedings is that adduced through the defendant's reliance on Mr Hussain's 30 October affidavit in reply which had also been before R A Hulme J in the pro bono reference application. 4. Adopting a reasonably generous approach to Mr Hussain who is after all self-represented, I note the conclusions of R A Hulme J that the plaintiff was accepted as indigent albeit the conclusion was attended by doubt as to the plaintiff's financial incapacity to engage legal representation. That passage from R A Hulme J judgment is as follows (at [21]-[24]): [21] The first matter to consider is Mr Hussain's means. Mr Hussain informed me from the Bar table, as well as via his affidavit of 30 October 2017, that he is indigent. He said in the affidavit he has no regular income and he has quite real financial hardship "to engage a lawyer to represent [his] case". I am prepared to accept that, although I note there is some inconsistency in what Mr Hussain said about his financial circumstances in late 2015. [22] When he was before Adamson J seeking pro bono referral in other proceedings on 3 December 2015, he apparently informed her Honour that he had no assets other than his and his wife's interests in a company which owned three taxis. He informed her Honour that the taxi business is no longer profitable; see MM International (Australia) Pty Ltd v Workers Compensation Nominal Insurer [2015] NSWSC 1846 at [12]. [23] That seems contrary to an affidavit that Mr Khan referred me to that was affirmed by Mr Hussain on 9 December 2015 (six days after he appeared before Adamson J for the above matter) in which Mr Hussain said at [23] that he personally owned three taxi vehicles whose collective value was in the order of $70,000. He also said that those taxi vehicles operated in the Australian Capital Territory through an affiliate company and each derived a profitable income. He also said that he did not owe any money on property or on the taxi vehicles. [24] Be that as it may, as I have said, I am prepared to accept that Mr Hussain is indigent. 1. There is no evidence as to any attempt by Mr Hussain to obtain legal representation other than via Legal Aid after the decision of R A Hulme J although I acknowledge his evidence was that previous attempts at engaging lawyers had been met with requests for a deposit into a trust account. 2. I accept R A Hulme J's assessment of Mr Hussain's capacity to represent himself in the appeal on the limited anticipated grounds identified in his Honour's judgment. 1. The second primary ground is Mr Hussain's health condition. 2. As noted by R A Hulme J, one particular matter that has pervaded these proceedings is the ongoing serious heart problem that the plaintiff experienced. The plaintiff underwent a procedure on 23 August this year by reason of him having, as he described it, five blocked arteries. The evidence from his consultant cardiologist, as earlier mentioned, was that he underwent PCI and a coronary artery stent insertion procedure after rota-atherectomy. 3. The opinion of the consultant cardiologist given on 4 September 2017 was that the plaintiff was "to avoid any stressful situations for three months", that is until 4 December 2017. That evidence was before R A Hulme J. (It should be noted that an earlier medical certificate by Dr Banerjea advised that Mr Hussain would be unfit for work and/or stressful activities from 10 August to 10 November 2017 which has, for the purposes of the application, lapsed.) 4. On the resumption of the hearing on 21 November 2017, Mr Hussain relied upon the further medical certificate of Dr Banerjea which specified he was "unfit for work: until 20 February 2018", an opinion which has little significance in the present context – a consideration which has brought to Mr Hussain's attention during the hearing on 21 November. In the light of that intimation, further medical evidence was obtained by Mr Hussain between the hearing of the application on 21 November and today. He produced a further certificate from Dr Banerjea and his psychologist, and an opinion from his psychologist, Ms Khan. The contents of those opinions have been earlier referred to in my judgment. 5. Whilst sympathy may be expressed for Mr Hussain's medical condition, there are a number of significant difficulties with this evidence for the application: 1. If it is assumed that the reference by the consultant cardiologist to a "stressful situation" related to appearances before the Court, as may be implied that opinion, the advice only runs until 4 December, some week and a half after the scheduled hearing of this matter today. No updated evidence from the cardiologist was obtained and it may be noted that 4 December corresponds to a further consultation with the physician. 2. There is evidence that Mr Hussain has been consistently attending rehabilitation, but there is no evidence from those assisting him, in that respect, as to the significance of these proceedings for that rehabilitation. 3. The further certificates of Dr Banerjea and the correspondence from Ms Khan do not explicitly express an opinion that Mr Hussain should not attend upon those proceedings because of his current health condition. Rather, in what appears to be a carefully constructed opinion, Dr Banerjea says that he should avoid stressful situations and "any assistance provided to him keeping [sic] that into consideration would be much appreciated including rescheduling his court appearance for next year if possible" [my emphasis.]. Further Ms Khan refers to Mr Hussain having an "extremely severe range [of] Depression, Anxiety and Stress". She also indicated the physical activity of travelling between Sydney to Canberra, as Mr Hussain put it in his submissions today, was exacerbating his medical condition. However, the highest Ms Khan expressed her opinion in relation to today's proceedings was that a delay would be beneficial. 4. The defendant submitted that the absence of any medical prognosis, which may provide an insight regarding when the proceedings may be fit to resume at some future date must be a matter of some real concern. I agree. There is an absence of any concrete medical evidence going to that question. The question of the future conduct of the proceedings, if adjourned, remains relatively open ended upon the plaintiff's application. 1. There is a further issue concerning non-compliance with directions. The directions issued by Registrar Bradford on 30 June 2017 were not complied with up to the time of the hearing before R A Hulme J and it may be noted that Mr Hussain entered no appearances before the Registrar in the intervening period. It is clear, that as R A Hulme J recognised, the date for the hearing of the matter was set long in advance to accommodate Mr Hussain's health difficulties. What is of significance is that, save for the possible filing of the transcript of the Local Court proceedings, Mr Hussain has taken no steps to advance his appeal, even after R A Hulme J granted him an indulgence by permitting him a further opportunity of filing and serving affidavit and other material in his orders of 7 November 2017. In other words, whilst earlier parts of the failure to comply with directions made by this Court may be to some extent explained by Mr Hussain's medical condition, when given the further opportunity to take steps to advance his case, he did not do so. 2. The applicant referred to difficulties in lodging documents during some of the circumstances recently affecting this Court, but none of those documents or things were directed to the advancement of his appeal proper. Indeed, his response to inquiries by this Court as to the compliance with the directions issued by R A Hulme J on 7 November was that, in lieu of filing any material of that kind (save for perhaps the transcript of the Local Court proceedings, marked Ex 7 in these proceedings), the plaintiff took the step of filing this adjournment application and an affidavit in support. 3. In all the circumstances, therefore, I refuse the adjournment application sought by Mr Hussain in the matter and formally dismiss the notice of motion filed on 17 November 2017. ********** 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: 29 November 2017