The Prothonotary of the Supreme Court of New South Wales v. Sukkar

HODGSON JA: In this matter, the opponent seeks an adjournment on a basis set out in an affidavit by his solicitor, Mr. Abboud, sworn 11 October 2007. Basically the ground is that because of difficulties in obtaining the services of Counsel for the provision of written submissions and attendance at Court today, the opponent seeks an adjournment so that written submissions settled by Counsel can be provided and the opponent can be represented by Counsel at the hearing.

The matter was previously set down for hearing on 21 May 2007 and on that day a similar application for adjournment was made, which was granted by a majority; and on that occasion there was an order that written submissions be filed by 20 July 2007. That order has not been complied with. In my view, the explanations offered for non-compliance with that order and the unavailability of representation today are not satisfactory. I note in particular that one part of the explanation concerns the return of a brief to one barrister, and I note that when Counsel for the claimant sought further details of those circumstances, the opponent’s solicitor was unwilling to provide them, or expressed himself to be unable to provide them.

In my opinion, having regard to the previous grant of an adjournment, the long lapse of time since that occasion, and the non-compliance with the Court’s order for written submissions by 20 July 2007, the Court should not grant an adjournment on this occasion. However, for my part, I would be prepared to indicate that I would be prepared to reserve a decision on the basis of today’s hearing, and to give the opponent a further seven days to provide written submissions. If those submissions are provided in that time, then I would give the claimant a further seven days to respond. If those written submissions are not provided by the opponent within that time, I would propose that the Court would prepare its judgment on the basis of the claimant’s written submissions and any argument presented today.

TOBIAS JA: I agree.

BASTEN JA: I agree that the opponent’s motion of 10 October 2008 should be dismissed. There should be an order that the opponent pay the claimant’s costs. Otherwise, I agree with the proposed directions and reasons of Justice Hodgson.

HODGSON JA: The order of Court is the Notice of Motion dated 10 October 2007 is dismissed, and the opponent is to pay the costs of that Notice of Motion. The Court will proceed on the basis I have indicated.