El-Hadi v Australian Timbers (NSW) Pty Limited

[2020] NSWSC 1501

Supreme Court

New South Wales

Medium Neutral Citation:

El-Hadi v Australian Timbers (NSW) Pty Limited [2020] NSWSC 1501

Hearing dates:

27 October 2020

Date of orders:

27 October 2020

Decision date:

27 October 2020

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1) The hearing of the application for a stay of proceedings is vacated.

(2) I list the hearing of the application for a stay before me on 13 November 2020.

(3) I direct the defendant to file and serve a notice of motion and affidavit pursuant to r 50.16A of the Uniform Civil Procedure Rules 2005 by 3 November 2020.

(4) I direct the plaintiff to file and serve any further written submissions by 6 November 2020.

(5) I direct the defendant to file and serve any further written submissions in reply by 11 November 2020.

(6) I fix the substantive appeal for hearing on 12 February 2021.

(7) I reserve the question of costs of today.

Catchwords:

PRACTICE AND PROCEDURE - Adjournment - No point of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

Mohamad El-Hadi – Plaintiff
Australian Timbers (NSW) Pty Ltd – Defendant

Representation:

Counsel:
A G Martin – Plaintiff
J Raftery – Defendant

Solicitors:
Law Society of NSW (Pro Bono Scheme) – Plaintiff
Mitry Lawyers – Defendant

File Number(s):

2020/255471

Publication restriction:

Nil

Judgment (EX TEMPORE) REVISED

INTRODUCTION

1. These proceedings were listed before me today for the purposes of determining an application by the plaintiff for a stay of orders made by a Magistrate Kennedy in the Local Court, pending the hearing of an appeal from her Honour’s decision. For the purposes of this judgment it is sufficient to note that her Honour determined the proceedings in the Local Court in favour of the defendant.

2. The procedures to be followed in relation to matters of this nature are governed by Part 50 of the Uniform Civil Procedure Rules 2005 (NSW) (the rules). In particular, r 50.16A provides as follows:

Objections to competency of appeal

(1) A defendant who objects to the competency of an appeal must, by notice of motion filed and served on all other parties to the appeal within 14 days after service on the defendant of the notice of appeal, apply to the court for an order dismissing the appeal as incompetent.

…

3. On 10 September 2020 the defendant's solicitor wrote to the plaintiff's solicitor and asserted, amongst other things, that the appeal brought by the plaintiff was bound to fail as it was (inter alia) incompetent. Notwithstanding the assertions made in that letter, there was no attempt by the defendant to comply with r 50.16A. However, it is also apparent that on receipt of the correspondence of 10 September, those acting for the plaintiff did not draw the failure to comply with r 50.16A to those acting for the defendant. That happened only a few days ago.

4. In seeking an adjournment of the hearing of the application for a stay, counsel for the plaintiff indicated that he first saw the submissions of counsel for the defendant in relation to the issue of the competency of the appeal a few days after they were served on 15 October 2020. He submitted that an adjournment was the appropriate course in circumstances where the defendant had failed to comply with the relevant provision of the rules. Counsel submitted that he required the notice of motion and affidavit to be filed in order to be in a position to properly address the issue of competency.

5. In opposing the application, counsel for the defendant submitted that any procedural non-compliance was technical in nature, and that those acting for the plaintiff had been on notice for some time that an issue of competency would be raised. It was submitted that notwithstanding the defendant’s failure to file the necessary notice of motion, the issue was one which was capable of being addressed in further oral submissions.

6. The circumstances which have arisen do not reflect favourably on either party to the proceedings. There is no cogent explanation why, in circumstances where the raised this issue in correspondence as long ago as 10 September 2020, those acting for the defendant did not comply with the requirement mandated by r 50.16A and file the necessary notice of motion and affidavit. Equally, and bearing in mind the basis of this application today, there is no cogent explanation why such non-compliance was not raised by those acting for the plaintiff on receipt of the correspondence of 10 September 2020.

7. In all of those circumstances, it seems to me that the dictates of justice are best served by granting an adjournment for a short period. In taking that course, I have had regard to the fact that, although not determinative, there is no suggestion that there will be any prejudice to the defendant if that course is taken. Bearing in mind that I propose to hear the application for a stay within a short period of time, I propose to give the matter a final hearing date today. To the extent that any further orders need to be made giving effect to that hearing date, they can be made on the next occasion.

8. For those reasons, I make the following orders:

1. The hearing of the application for a stay of proceedings is vacated.

2. I list the hearing of the application for a stay before me on 13 November 2020.

3. I direct the defendant to file and serve a notice of motion and affidavit pursuant to r 50.16A of the Uniform Civil Procedure Rules 2005 by 3 November 2020.

4. I direct the plaintiff to file and serve any further written submissions by 6 November 2020.

5. I direct the defendant to file and serve any further written submissions in reply by 11 November 2020.

6. I fix the substantive appeal for hearing on 12 February 2021.

7. I reserve the question of costs of today.

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