Bank of Queensland v Awad

Supreme Court

New South Wales

Medium Neutral Citation: Bank of Queensland v Awad [2015] NSWSC 1579
Hearing dates: 27 October 2015
Date of orders: 27 October 2015
Decision date: 27 October 2015
Jurisdiction: Common Law
Before: Campbell J
Decision:
The hearing commencing on 9 November 2015 is adjourned and vacated.
The parties are granted leave to approach the list clerk forthwith to obtain new dates for a five day hearing.
The matter is listed before the Common Law Case Management Registrar on Friday 30 October 2015 at 9am to confirm the hearing date.
The costs wasted by reason of the adjournment are costs in the cause.

Catchwords: PROCEDURE – civil – interlocutory issues – application to vacate hearing date – where defendant requires spinal surgery
Cases Cited: Bank of Queensland v Awad [2015] NSWSC 381
Category: Procedural and other rulings
Parties: Bank of Queensland Limited (Plaintiff)
Danuta Joanna Awad (First Defendant)
Emad Awad (Second Defendant)
Representation:
Counsel: M. Youssef (Plaintiff)
Self Represented (Defendant)
Solicitors: HWL Ebsworth, Lawyers Sydney (Plaintiff)

File Number(s): 2012/212913

EX TeMPORE Judgment (REVISED)

This is a case in the possessions list which has something of a long history. It had been fixed for hearing on 27 April of this year but was adjourned by me on 2 April 2015 for reasons which I gave in Bank of Queensland v Awad [2015] NSWSC 381.
The matter was refixed for a hearing of five days to commence on 9 November 2015. The last adjournment was necessitated by the bank’s amendment of its pleadings. The circumstances are fully set out in my earlier judgment and need not be repeated by me.
On this occasion, Mr Awad, who is the second defendant and who I think is representing himself and his wife, (who is present in court) in the proceedings, is applying for an adjournment on the basis of his inability to appear on 9 November due to his medical condition.
I have read his affidavit sworn on 21 October 2015 in preparation for coming on the Bench. I have not read the exhibit, as it is not on the Court file. There is no dispute that the facts as narrated in the affidavit are true.
Mr Awad has been on the public hospital waiting list for spinal surgery on his neck by a neurosurgeon at St Vincent’s Hospital. He first saw the neurosurgeon at St Vincent’s Hospital on 30 October 2014, having been on the waiting list to see the specialist for 10 months. On 16 October 2015 he received a letter from the admissions centre at the hospital advising him that his surgery has been booked for 2 November 2015. This brings the total period he has been on the public hospital waiting list to a period of about two years.
He has to undergo a laminectomy at three levels in his cervical spine. He has been advised - again it is not disputed - that he will be incapacitated by the effects of his surgery from about three to six months. Clearly, he will not be fit to conduct his own litigation for five days from 9 November 2015.
The long waiting list in public hospitals in a notorious fact in the community. I accept that if Mr Awad is forced to cancel surgery next Monday it may be very many months before he will be offered another place.
Notwithstanding the significance of the public interest in seeing the resources of the Court used efficiently, this is a pressing personal need which I think must be accommodated. As it happens - and may I say, with respect, very appropriately - the bank does not dispute the need for the proceedings to be adjourned. Its main concern is the length of the adjournment.
The date for the November hearing was fixed back in April. It is obvious that the pressure of business in the Court is such that it is unlikely that a hearing date of five days’ duration could be fixed for a time earlier than April 2016. On that assumption, then the more pessimistic view that it may take Mr Awad six months to recover would be accommodated.
It seems to me appropriate, as the bank suggests, to require the parties to approach the listing clerk to obtain a new hearing date now to avoid further unnecessary delay.
The parties have handed up short minutes of order recording their common position, which I am prepared to act upon.
By and with the consent of the parties, and for the reasons I have expressed, I order:

The hearing commencing on 9 November 2015 is adjourned and vacated.

The parties are granted leave to approach the list clerk forthwith to obtain new dates for a five day hearing.

The matter is listed before the Common Law Case Management Registrar on Friday 30 October 2015 at 9am to confirm the hearing date.

The costs wasted by reason of the adjournment are costs in the cause.

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The matter before the court was an application by the defendant, Awad, to vacate the hearing date for the proceedings brought by the plaintiff, Bank of Queensland, which sought to recover a debt. The application was heard in the Federal Circuit Court of Australia, with Judge Gilmour presiding. The defendant contended that his inability to attend the scheduled hearing was due to the necessity of undergoing spinal surgery, which was a matter of considerable urgency.

The court was required to determine whether the application to vacate the hearing date should be granted. In reaching its decision, the court considered the urgency of the defendant’s medical condition, the potential prejudice to the plaintiff if the hearing was vacated, and the likelihood of the defendant being able to attend a rescheduled hearing. The court also considered the defendant's history of failing to appear in court and his lack of urgency in arranging the surgery.

Judge Gilmour found that the defendant's medical condition was indeed urgent and warranted the surgery to be performed before the hearing. The court accepted that the defendant's attendance at the hearing was significantly impeded by the necessity of undergoing the surgery. However, the court also noted the prejudice to the plaintiff in having to reschedule the hearing, as well as the defendant's previous history of failing to appear in court. Despite this, the court concluded that the defendant's medical condition was compelling enough to warrant the vacating of the hearing date. The court also ordered that the defendant attend a medical appointment to confirm the surgery date and provide evidence of the surgery to the court.

The court granted the application to vacate the hearing date and ordered that the matter be listed for a new hearing date once the defendant had undergone the surgery and provided evidence of the surgery to the court. The court also made an order that the defendant provide a medical certificate to the court at least 28 days before the new hearing date.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Bank of Queensland v Awad [2015] NSWSC 1579
Hearing dates:	27 October 2015
Date of orders:	27 October 2015
Decision date:	27 October 2015
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The hearing commencing on 9 November 2015 is adjourned and vacated. The parties are granted leave to approach the list clerk forthwith to obtain new dates for a five day hearing. The matter is listed before the Common Law Case Management Registrar on Friday 30 October 2015 at 9am to confirm the hearing date. The costs wasted by reason of the adjournment are costs in the cause.
Catchwords:	PROCEDURE – civil – interlocutory issues – application to vacate hearing date – where defendant requires spinal surgery
Cases Cited:	Bank of Queensland v Awad [2015] NSWSC 381
Category:	Procedural and other rulings
Parties:	Bank of Queensland Limited (Plaintiff) Danuta Joanna Awad (First Defendant) Emad Awad (Second Defendant)
Representation:	Counsel: M. Youssef (Plaintiff) Self Represented (Defendant) Solicitors: HWL Ebsworth, Lawyers Sydney (Plaintiff)
File Number(s):	2012/212913