Supreme Court New South Wales Medium Neutral Citation: Sarina v Mackay [2020] NSWSC 427 Hearing dates: 21 April 2020 Date of orders: 21 April 2020 Decision date: 22 April 2020 Jurisdiction: Common Law Before: Adamson J Decision: (1) Vacate the hearing date of 24 April 2020. (2) Order the plaintiff to pay the defendant's costs of the plaintiff's notice of motion filed on 16 April 2020 and any costs thrown away by the vacation of the hearing date. (3) List the matter for further directions before me at 9.15am on 29 April 2020. Catchwords: PRACTICE AND PROCEDURE — application to vacate hearing date — application granted Legislation Cited: Civil Procedure Act 2005 (NSW), Part 6 Local Court Act 2007 (NSW), ss 39, 40 Uniform Civil Procedure Rules 2005 (NSW), r 50.14 Category: Procedural and other rulings Parties: Clinton Sarina (Plaintiff) Stewart Mackay (Defendant) Representation: Counsel: C Perry (Plaintiff) P See (Defendant) Solicitors: Pure Legal (Plaintiff) Lloyd & Lloyd Solicitors (Defendant) File Number(s): 2019/343943 Judgment Introduction 1. This matter was listed for final hearing on 24 April 2020. By notice of motion filed on 16 April 2020, Clinton Sarina, the plaintiff, sought to have the hearing date vacated. His application was opposed by Stewart Mackay, the defendant. At the conclusion of the hearing I vacated the hearing date and made the orders which are set out at the end of these reasons. My reasons for vacating the hearing date are as follows. Background facts 1. The proceedings in this Court are an appeal or application for leave to appeal pursuant to ss 39 and 40 of the Local Court Act 2007 (NSW) against an order for judgment made by Barko LCM on 4 October 2019 and an order for costs made by his Honour on 8 November 2019. The orders were made in favour of Mr Mackay, who was the plaintiff in the Local Court, against Mr Sarina, who was the defendant in the Local Court. The proceedings arose out of a loan agreement pursuant to which Mr Mackay advanced funds to Mr Sarina which were allegedly not repaid. 2. Mr Sarina commenced the proceedings in this Court by filing a summons on 1 November 2019. An appearance was filed on behalf of Mr Mackay by Mr See, who acted as his solicitor in the Local Court. On 14 November 2019, the Registrar made directions by consent granting leave to Mr Sarina to amend the summons. An amended summons was filed on 5 December 2019. 3. On 18 December 2019, Mrs Perry, Mr Sarina's solicitor, gave Mr Sarina a notice of intention to cease to act. 4. The Local Court judgment was stayed upon the payment by Mr Sarina of the judgment sum (approximately $107,400 including interest on an initial principal sum of $65,000) into the Local Court on 10 January 2020. 5. On 12 February 2020, the Registrar made directions in accordance with short minutes of order which were expressed to be by consent. The directions were as follows: "1. The Applicant [the plaintiff] to file and serve his written submissions of no more than 15 written pages by 13 March 2020, which must address the matters that would otherwise have been included in a summary of argument under r 51.12 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), as well as the matters included under r 51.36 of the UCPR. 2. The Applicant is to file and serve a chronology by 13 March 2020. 3. The Respondent [the defendant] is to file and serve his written submissions in reply of no more than 15 written pages by 23 March 2020, which must address the matters that would otherwise have been included in a response under r 51.13 of the UCPR, as well as the matters included under r 51.36 of the UCPR. Appeal Book 4. The Applicant to file 3 hard copies and one electronic copy of the Red Book for the Court and to serve one hard copy of the Red Book on the Respondent by 19 February 2020. 5. The Applicant to file 3 hard copies and one electronic copy of the Black Book for the Court, and to serve one hard copy of the Black Book on the Respondent by 9 March 2020. 6. The Applicant to file 3 hard copies and one electronic copy of the Blue Book for the Court, and to serve one hard copy of the Blue Book on the Respondent by 9 March 2020. 7. The Applicant to file 3 hard copies and one electronic copy of the Orange Book for the Court and to serve one hard copy of the Orange Book on the Respondent by 27 March 2020. 8. Each of the parties must supply a list of authorities no later than 10:00 AM on the business day before the hearing. 9. The proceedings be listed for hearing on 24 April 2020 with an estimate of 1 day." 1. After having made the orders by consent, the Registrar appreciated that orders 4-7 were not apposite to proceedings in this Division. On 25 March 2020, the Registrar vacated orders 4-7. The hearing date on 24 April 2020 was not vacated. Mrs Perry informed me that she consented to a relatively early hearing date because Mr Sarina's trial counsel was to commence maternity leave on 27 April 2020 and Mrs Perry wanted to brief her on the appeal. On 25 March 2020, the Registrar wrote to the parties in the following terms: "I have vacated the Court's previous orders in relation to the coloured appeal books, but have left the remaining orders in place." 1. Mrs Perry consulted the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and ascertained that she was required to file an affidavit in accordance with UCPR, r 50.14 as follows: "50.14 Reasons for decision, transcript and other parts of the record of the court below (1) Unless the court otherwise orders, the plaintiff must prepare, file and serve on each defendant, not later than 3 days before the date fixed for the hearing of the summons, an affidavit to be relied on at the appeal or application for leave to appeal that annexes or exhibits— (a) a copy of the reasons for the decision of the court below, unless the court below has not given, and does not intend to give, written reasons, and (b) a copy of the transcript of the proceedings in the court below, unless a transcript cannot be obtained in respect of proceedings of that type, and (c) a copy of any exhibit, affidavit or other document from the proceedings in the court below that the plaintiff wishes to be considered at the hearing of the appeal or proposed appeal. (2) The defendant may prepare an affidavit to be relied on at the appeal, cross-appeal or application for leave to appeal or cross-appeal any exhibit, affidavit or other document from the proceedings in the court below that the defendant wishes to be considered at the hearing of the appeal, cross-appeal or application for leave to appeal or cross-appeal in addition to any exhibit, affidavit or other document referred to in subrule (1)(c). (3) The higher court may make further directions for the filing and service of an affidavit under subrule (1) or (2) and for the lodging and service of any exhibits to such an affidavit." 1. Mrs Perry appreciated that she was obliged to file the affidavit no later than three days before the allocated hearing date of 24 April 2020. In March 2020, Mrs Perry made enquiries about briefing senior counsel to lead counsel who had appeared in the Court below. The senior counsel whom she had in mind raised concerns that his fees would not be recoverable having regard to the amount in issue on the appeal. 2. At this time, Mrs Perry considered that she would have to attend the Local Court Registry to obtain copies of documents which she did not have, such as some of the exhibits, including one that was tendered from documents produced in answer to a notice to produce on a day when Mrs Perry was not in court. She was not particularly concerned about obtaining such documents as, at that stage, the Local Court was still operating normally. 3. Towards the end of March 2020, Mrs Perry considered that she was no longer in a positon to conduct the appeal. She had temporarily closed her offices in the city and moved to Coffs Harbour to care for aged and unwell relatives. She filed a notice of ceasing to act on 27 March 2020 and served it on Mr See. Mrs Perry also terminated junior counsel's retainer to appear on the appeal. Mrs Perry expected that Mr Sarina would brief other legal representatives to appear on the appeal. However, Mrs Perry received no communication from Mr Sarina asking her to transfer her file to another solicitor. She did, however, have a conversation with him to the following effect, as she explained in oral submissions to me on 21 April 2020: "Mr Sarina did ask me for copies of documents. I explained to him that I am not in a position to provide them. I also explained to him the difficulty I foresee in relation to the Local Court documents and I indicated to him, with his consent, I would be making this application." 1. On 2 April 2020, Mrs Perry was contacted by an IT consultant who manages her IT system in her city office and was informed that her office computer had been hacked with the consequence that she was unable to retrieve any of her records or have access to her bank accounts. She reported the matter to the New South Wales Police. Mrs Perry also became concerned that she could not obtain copies of documents from the Local Court as the Registry had closed because of the COVID-19 virus. 2. On 3 April 2020, Mr See wrote to Mr Sarina at the address provided on the notice of ceasing to act and requested that he remedy his default in complying with the timetable. Mr See concluded the letter as follows: "Please let us know whether you wish to proceed with this appeal and if you do, kindly let us know when you will make good these defaults. Our client reserves all of his rights to seek any necessary relief and any consequential costs orders as a result [of] your want of compliance with the Court's Orders. Given that the hearing of the proceedings is set down for one day on 24 April 2020, we ask that you give us a prompt reply." 1. Mr Sarina did not respond. 2. On about 6 April 2020, Mrs Perry informed senior counsel whom she had proposed briefing to inform him that she intended to seek to have the hearing date vacated. On 9 April 2020, Mrs Perry contacted Mr See to tell him that her computer had been hacked and that she was no longer on the record. Mr See insisted that Mrs Perry file a notice of appointment of solicitor before he would discuss the matter further with her. Mrs Perry filed a notice of appointment of solicitor for the limited purpose of the adjournment application. 3. On 14 April 2020, Mrs Perry sought Mr See's consent to vacate the hearing date and to write to the Registrar seeking such vacation. Mr See responded by email that day. He reminded Mrs Perry that Mr Sarina had been ordered to file and serve his written submissions and chronology by 13 March 2020 and that no explanation had been given for his continuing default. Mr See also asked why the relevant documents could not be obtained from trial counsel. 4. On 15 April 2020, Mrs Perry wrote to the Registrar and sought an order that the hearing date be vacated. This led to the filing of the present notice of motion on 16 April 2020. 5. According to Mrs Perry's submissions, she was only able to contact Mr Sarina on 16 April 2020 at which point he indicated that he would attempt to engage new solicitors. It would appear that the delay in making contact was due to the circumstance that her office computer had been hacked and valuable data (including contact details of clients and emails) became inaccessible. 6. On 17 April 2020, Mr See spoke with Mrs Perry and informed her that he had instructions to make available to the plaintiff any missing court documents. This was later confirmed in an email sent to Mrs Perry on the same day by a paralegal in Mr See's office on his behalf. The email pressed for an explanation for non-compliance with the directions requiring Mr Sarina to serve his submissions and a chronology. The email also attached detailed written submissions prepared in the Local Court hearing by counsel for Mr Sarina in support of the submission that his counsel had all relevant documents. Consideration 1. It is plain that the matter is not ready to proceed on 24 April 2020. The affidavit pursuant to UCPR r 50.14 was due to be filed and served today and was not. Mr Sarina's submissions and chronology have still not been filed in accordance with directions made by consent on 12 February 2020. The matters which govern the exercise of my discretion whether to grant an adjournment are set out in Part 6 of the Civil Procedure Act 2005 (NSW). 2. The real question is whether the adjournment ought be refused, with the consequence that the matter will be listed before me on Friday, 24 April 2020 and not be able to proceed or whether it ought be granted so that it can be heard, if it is to be pursued, at a later date. Mr Sarina's default in serving his submissions and chronology has not been explained. The default occurred when Mrs Perry was still on the record as his solicitor. It is to be regretted that orders 4-7 made by this Court by consent on 12 February 2020 were made at all and that their inappropriateness was not apparently appreciated for some six weeks before the Registrar vacated them on 25 March 2020. The allocation of a hearing date is a significant matter in the administration of justice. A hearing date will not lightly be vacated. 3. In the present case, the evidence does not establish the position of Mr Sarina in any detail. He has presumably instructed his solicitor, Mrs Perry, to apply for the adjournment. He has not sought to explain the default or what he proposes to do to remedy it. Mrs Perry is plainly unable to continue to be on the record or to conduct the appeal. It would be unreasonable to expect Mr Sarina's trial counsel to pick the matter up again, even if she were available to do so, as her retainer was terminated on 27 March 2020 and she is to begin maternity leave on 27 April 2020. The constellation of factors, including Mrs Perry's own unfortunate personal predicament, has persuaded me that it is necessary, in the interests of justice, that the hearing date be vacated. 4. I have listed the matter before me next week in order that directions can be made for the further conduct of the proceedings and a further hearing date to be allocated in the near future, if Mr Sarina wishes to pursue his appeal. Costs 1. Mr See sought an order for the costs of the motion and an order for the costs thrown away by the adjournment. Mrs Perry resisted the application. She submitted that it was unreasonable for Mr See not to consent to the adjournment and that, had he done so, there would have been no need for the motion or the hearing today. 2. I am satisfied that it is appropriate that Mr Sarina be ordered to pay the costs of the motion and the costs thrown away by the adjournment. It was not unreasonable for Mr Mackay to seek to retain the hearing date in circumstances where Mr Sarina was in default of directions made by the court and had not provided any explanation for the failure. While Mrs Perry's personal situation is very unfortunate, this misfortune post-dates the due date for the submissions and the chronology. It has also not been explained why Mrs Perry sought to cease to act in December 2019 when she gave notice of her intention to Mr Sarina. In so far as there has been fault and default in compliance with directions, either Mr Sarina or Mrs Perry or both of them are responsible. Mr Mackay ought not have to bear the costs of the adjournment or the motion. Orders 1. The orders I made at the conclusion of the hearing on 21 April 2020 were as follows: 1. Vacate the hearing date of 24 April 2020. 2. Order the plaintiff to pay the defendant's costs of the plaintiff's notice of motion filed on 16 April 2020 and any costs thrown away by the vacation of the hearing date. 3. List the matter for further directions before me at 9.15am on 29 April 2020. ********** 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: 22 April 2020