Bao v Qu; Tian

HIS HONOUR: The substantive proceedings before the Court is an application for an enforcement of a foreign judgment under the principles of the common law, in that it is not a matter that is dealt with by the statutory regime for foreign judgments. The defendants have sought a further adjournment of the proceedings, as a preliminary application.

Mr Keller, Counsel for the defendants, referred to proceedings before the Court in February 2020, which was a reference to the proceedings before Justice Hamill as Duty Judge, in which orders were made, seemingly by consent. In any event, at that stage leave was granted to the defendants to file points of defence and the matter was listed for hearing on today's date with an estimate of one day.

Those directions, made by the Court through his Honour, were for the defendants to file and serve their points of defence on or before 6 March 2020, which has been done. They also required the defendants to file and serve any evidence upon which they relied on or before 20 March, and for them to file and serve any written submissions on or before 9 April. Those latter directions were not the subject of compliance.

I accept fully Mr Keller's explanation given in the proceedings, that he has been, or his instructing solicitor has been, unable for reasons which have not been expanded, to obtain instructions from their clients in respect of the filing and service of evidence and submissions. I appreciate the difficulty that both Mr Keller and his instructing solicitor have in relation to that matter.

The difficulty I have is that the Court made the orders for obvious reasons. If a foreign judgment is sought to be enforced under whatever regime, it is appropriate for the matter be dealt with with a degree of expedition.

The principles that the Court is required to apply to or consider in relation to the application for an adjournment are those principles that are embodied in s 56 of the Civil Procedure Act 2005 (NSW) and following, which require the Court to facilitate the just, quick and cheap resolution of issues between the parties. Associated with that, and as part of that regime, of course, the Court is required to do justice to the parties.

But, natural justice requires the Court to give each party a reasonable opportunity to prepare and to present that party's case. The principles of natural justice do not require the Court to ensure that a party takes best advantage of the opportunity that has been given. It seems to me that a reasonable opportunity has been given by the Court and the defendants have failed to take best advantage of it.

In those circumstances, it seems to me that the expedition and case management requirements, which are promulgated as the purposes associated with s 56 of the Civil Procedure Act and following, require the Court to refuse the adjournment. By require, of course, I do not suggest that the Court does not have a discretion. But, it seems to me that it is appropriate for the discretion to be exercised in a way that refuses the application for adjournment and I so rule.