Central Coast Animal Care Facility Incorporated v Wyatt

Central Coast Animal Care Facility Incorporated v Wyatt - [2022] NSWSC 1373 - NSWSC 2022 case summary — Zoe

Judgment

HIS HONOUR: The application listed before the Court on 7 October 2022 was an application by the first defendant Janelle Wyatt (Ms Wyatt) to set aside consent orders made in these proceedings by Robb J on 9 December 2020 (set aside consent orders application).
Within the 24 hours prior of the Court listing the character of the set aside consent orders application changed.
In the afternoon of 6 October 2022 Ms Wyatt foreshadowed an application to adjourn the hearing of the set aside consent orders application (adjournment application).
In the morning of 7 October 2022, following failure of Ms Wyatt to appear, an application was made by the plaintiff for dismissal of both the adjournment application and the set aside consent orders application (dismissal application).
On one view there may be some doubt as to whether any adjournment application was formally moved by Ms Wyatt. I make some comments regarding this below.
On 7 October 2022 I entertained both the adjournment application and the dismissal application in a context in which the Court had received correspondence from Ms Wyatt in respect of the adjournment application (T 3, 4, 7, 13, 14) and Mr Maltz (who appeared for the plaintiff) made submissions on the basis that such an adjournment application was a live issue both in its own right and as a discretionary consideration in dealing with the dismissal application: T 5, 16, 17, 20.
It is a serious matter for the Court to dismiss an application by a party to proceedings in circumstances where the application has been specially fixed and there is no appearance by the applicant.
I set out below my reasons for the determination I made dismissing both of Ms Wyatt's applications.
It is appropriate in providing the reasons to provide some context as to the character of the proceedings and the procedural history before then addressing the submissions by the plaintiff in respect of the dismissal application. I address remarks in respect of the adjournment application, the power of the Court to entertain such applications and consideration of the applications.

[3]

Nature of proceedings

The proceedings were commenced on 3 December 2020 almost 22 months ago.
The plaintiff is said to be a not for profit organisation incorporated in July 2016 with a small group of staff and volunteers that rescue and care for dogs and cats.
Ms Wyatt and Troy Wyatt, the second defendant, are the registered proprietors of property at Crooks Road, Mandalong (premises).
Deanna Walton (Ms Walton) is the manager of the plaintiff and president of the committee of the incorporated association.
The summons filed by the plaintiff on 3 December 2020 sought: 1. a declaration that a document described as "lease" which is identified by reference to an exhibit to an affidavit of Ms Walton sworn 3 December 2020 is a valid and binding lease between the plaintiff as tenant and each of the defendants as joint owners of the premises as joint landlords; or alternatively, the plaintiff as tenant and Ms Wyatt as one joint owner of the premises as landlord; 2. an injunction restraining Ms Wyatt from disturbing the plaintiff's possession or otherwise interfering with the plaintiff's access or quiet enjoyment; and 3. a (mandatory) injunction that Ms Wyatt take steps to allow the plaintiff's servants and agents to regain exclusive possession of the premises including provision of all keys, necessary passcodes and access codes and unlocking of any gates or chains impeding access to the premises.
To give a very brief context to the nature of the dispute between the parties I simply note the following without in any way finding or making any determinations regarding the correctness of the following assertions.
On the plaintiff's case on or about 17 September 2020 Ms Walton executed a lease on behalf the plaintiff which was described by Ms Walton as an interim lease.
Subsequently on 20 October 2020 Ms Walton asserts that Ms Wyatt signed a new lease in the presence of a person Ms Walton describes as Ms Wyatt's partner Chris Lambert. Ms Walton says that on 21 October 2020 she executed this new lease on behalf of the plaintiff.
The plaintiff asserts that the lease is for a period of two years from the commencement date of 17 September 2020 with an option to renew for a further two years. The permitted use of the premises is for dog kennels and associated purposes.
The defendants hold the title to the premises as joint tenants. However, the lease propounded by the plaintiff is not executed by the second defendant.
The plaintiff initially asserted that the area covered by the lease comprises: a home occupied by Ms Wyatt; a home occupied by another tenant; a kennel area with adjoining facilities, and an access road.
Ms Walton asserts that the plaintiff on and from 1 November 2020 has paid rent and continued to pay rent to Ms Wyatt in accordance with the lease.
At the time of the commencement of the proceedings the leased premises did not apparently contain any animals.
The plaintiff asserts that it made a number of improvements to the premises seemingly with the goal of being able to house up to 50 to 80 animals.
Ms Walton contends that on or about 8 November 2020 she was advised that Ms Wyatt had a fight with the builder engaged to undertake work on the premises and on 10 and 11 November 2020 Ms Walton's partner received a number of texts in substance indicating that the plaintiff (and others) were not welcome on the premises.
On 16 November 2020 Ms Walton asserts she attended with police at the premises and that the locks to the premises had been changed.
Ms Wyatt on the other hand appears to contend that the form of lease document which is the subject of relief by the plaintiff in the proceedings has in fact been manipulated and is not in its original form.
It is evident that there are other disputes and allegations between the parties, which for present purposes are not relevant to mention, let alone comment upon.

[4]

Procedural history

On 3 December 2020 the plaintiff approached this Court and sought orders from then Duty Judge, Parker J.
The matter was stood over to 7 December 2020 before Robb J as Equity Duty Judge. On that occasion directions were made to bring the matter back before Robb J as Duty Judge on 9 December 2020.
On 9 December 2020 Mr Maltz of counsel appeared for the plaintiff instructed by Turnbull Hill solicitors and Mr Stowe of counsel appeared for Ms Wyatt instructed by Martin Woods of M J Woods & Co (Mr Woods).
The Associate's record of proceedings for 9 December 2020 indicates that consent orders were made in the following terms: "1 The Court orders by consent, and without admissions, and until further order, and on the usual undertaking as to damages as well as an undertaking by the Plaintiff to continue to pay rent while in occupancy, that: (a) The First Defendant take steps to give the Plaintiff (and its agents and servants) access to the dog-kenneling premises in dispute, from 9am 12 December 2020, subject to the paragraph 2(b) and subject to the operation of any apprehended violence order referred to in paragraph 2(f) below. 2 The Court notes: (a) that any present right of the First Defendant to terminate the lease relating to the property at [xx] Crooks Road, Mandalong ("Lease"), remains contested; (b) that the First Defendant reserves any right to purport to terminate the Lease on 7 days notice; (c) that the First Defendant has conveyed to the Plaintiff her intention to exercise any such purported right, if the First Defendant considers that her various remaining concerns in relation to the Lease, access to the Property, and the Plaintiff's occupation of the Property, are not addressed ("Concerns"); (d) the agreement of the parties to attempt to investigate, and explore the resolution of, the Concerns (including, without limitation, the possibility of mediation); (e) the agreement of the parties that (without admission by the Plaintiff as its obligation to do so, and reserving its position), the Plaintiff to repay any amount up to $3,000 which the First Defendant has paid the Plaintiff, by way of repayment of rental payments previously made by the Plaintiff to the First Defendant; (f) the First Defendant has applied for an apprehended violence order against Deanna Walton, but the matter has not been heard and no order has been made at this time. 3 Costs reserved. 4 The matter be listed for further directions, before the Registrar in Equity, on Wednesday 3 February 2021. To Janelle Marie Wyatt. If you disobey paragraph 1 of this order you will be liable to sequestration of property and to imprisonment."
The matter was stood over to 3 February 2021 before the Registrar.
On 27 January 2021 Jack Leitner of Australian Lawyers & Advocates filed a Notice of Change of Solicitor commencing to act for the plaintiff.
On 10 February 2021 Chamberlains Law Firm filed an appearance for the second defendant.
There was a number of subsequent listings before Registrar Walton in the February and March 2021.
On 23 February 2021 and 4 March 2021 Ms Wyatt filed Notices of Motion.
On 1 April 2021 Simon Jackson solicitor of InPrivate Law filed an appearance on behalf of Ms Wyatt.
On 20 April 2021 the matter was listed before Ward CJ in Eq and various directions were made.
On 10 May 2021 Chamberlains Law Firm filed a submitting appearance on behalf of the second defendant, presumably with the intent of converting seemingly the full appearance into non-active involvement in the matter for the second defendant.
On 11 May 2021 at a hearing before Ward CJ in Eq, her Honour dismissed the February and March 2021 Notices of Motion of Ms Wyatt and reserved the question of costs. Her Honour extended the time for the defendants to file and serve lay evidence and adjourned the matter to the Registrar's list on 3 June 2021.
On 2 June 2021 the listing which was to take place on 3 June 2021 was stood over to 24 June 2021.
On 22 June 2021 Registrar Walton made directions and vacated the listing on 24 June 2021.
On 2 July 2021 Simon Jackson filed a Notice of Intention of Ceasing to Act for Ms Wyatt.
On 21 July 2021 Simon Jackson file a Notice of Ceasing to Act for Ms Wyatt.
On 22 July 2021 there was a listing before Registrar Walton.
On 11 August 2021 James Maitland of Taperell Rutledge filed a Notice of Appointment of Solicitor for Ms Wyatt and also a Notice of Change of Solicitor.
On 12 August 2021 there was a listing before Registrar Walton.
On 16 September 2021 James Maitland filed a Notice of Intention to Cease to Act for Ms Wyatt.
On 23 September 2021 James Maitland filed a Notice of Ceasing to Act for Ms Wyatt.
On 29 September 2021 and 27 October 2021 there were further listings before Registrar Walton.
On 22 October 2021 the plaintiff filed two Notices of Motion being: 1. a motion seeking leave to amend its summons seeking additional orders regarding return of rent paid during the period the plaintiff claims it was wrongfully excluded from the premises and an order that in the event that the plaintiff does not recover possession of the premises, compensation for the expenditure (amended summons motion); and 2. a motion that Ms Wyatt be committed for contempt for breach of the orders made on 9 December 2020 (contempt motion).
On 27 October 2021 Ms Wyatt filed a Notice of Motion seeking orders that she have leave to: 1. file evidence within seven days; 2. file a cross-claim within seven days; 3. file a notice of motion to set aside what in the motion is described as "interlocutory injunction" but has been subsequently identified as being the application which was listed before myself for hearing on 7 October 2022 being the set aside the consent orders application (leave motion).
On 4 November 2021 Ms Wyatt filed a further Notice of Motion for summary dismissal of the plaintiff's claim (summary dismissal motion).
On 10 February 2021 there was a listing before Registrar Walton.
On 1 February 2022 the matter was listed before Ward CJ in Eq.
Her Honour extended the time for filing by the plaintiff of affidavits in reply to Ms Wyatt's evidence, listed the respective Notices of Motion for hearing with an estimate of one day before Kunc J on 29 April 2022 and made the usual interlocutory order for hearing.
On 20 April 2022 the plaintiff caused to be issued a subpoena directed to Mr Woods to give evidence and produce documents.
On 21 April 2022 the subpoena was served on Mr Woods and on 26 April 2022 Georgia Aaron the process server swore an affidavit of service.
On 29 April 2022 the four Notices of Motion were listed for hearing before Kunc J, being the contempt motion, the amended summons motion, the summary dismissal motion and the leave motion.
In relation to the summary dismissal notice of motion his Honour dismissed that motion and ordered that costs of the motion be the parties' costs in the cause.
In relation to the amended summons motion and the contempt motion his Honour stood the motions over generally with liberty to the plaintiff to restore the matter to the Registrar's list but to the intent that the motions would not be restored until the contempt motion and the leave motion were (otherwise) determined.
The leave motion (it will be recalled) sought three types of relief being leave to file evidence, leave to file a cross summons and leave to file a notice of motion to set aside the consent orders made by Robb J on 9 December 2020 (what I have described as being the set aside consent orders application).
Justice Kunc identified the third head of leave sought namely the leave to set aside the consent orders as being the matter which would need to be first substantively determined.
In relation to the leave motion his Honour dismissed the first two heads of relief (i.e. that Ms Wyatt have leave to file evidence and a cross summons within seven days) but without prejudice to Ms Wyatt seeking to file a cross-claim after the set aside consent orders application was determined.
His Honour further made very specific directions in relation to preparation of the set aside consent orders application for hearing. The directions included: 1. that the defendant file further evidence in support of the application on or before 13 May 2022; 2. the plaintiff file further evidence in defence of the application on or before 27 May 2022; 3. the defendant file any reply evidence by 10 June 2022; 4. that no party may file and serve any other evidence without leave of the Court; 5. the defendant file and serve submissions on or before 10 June 2022; 6. the plaintiff file and serve an outline of submissions on or before 24 June 2022; 7. a raft of orders in relation to the subpoena addressed to Mr Woods; 8. standing the matter over to before the Registrar to 29 June 2022 for the purpose of allocating a hearing date.
On 13 May 2022 Ms Wyatt filed an affidavit in support of the set aside consent orders application.
The affidavit was at least sworn on the day required by Kunc J's orders. There are numerous annexures to the affidavit.
On 27 May 2022 the plaintiff served two affidavits in defence of the set aside consent orders application being an affidavit of Ms Walton and an affidavit of Mr Leitner.
Ms Wyatt has not, so far as I can ascertain, filed any affidavit evidence in reply or any submissions in support of the application.
On 24 June 2022 the plaintiff, in accordance with the timing under the orders of Kunc J, served written submissions in defence of the application.
On 18 July 2022 Mr Leitner emailed the Equity Registrar copied to Ms Wyatt referring to other orders made on 28 June 2022 providing information that had been requested being essentially information identifying what orders had been made in relation to Notices of Motion before the Court and in particular the set aside consent orders application.
The email noted that the plaintiff's understanding of Ms Wyatt's case on the set aside consent orders application was that she did not consent (or give informed consent) when consent orders were made or was [allegedly] improperly represented.
Mr Leitner indicated that the set aside consent orders application was opposed on the basis that Ms Wyatt was represented by experienced solicitors and counsel, must have given informed consent, and was presumed at law to have done so. The email noted that each of Ms Wyatt and the plaintiff had filed and served their evidentiary material but Ms Wyatt had not filed and served any submissions although the plaintiff had done so.
On 28 July 2022 Mr Leitner sent an email to Ms Wyatt noting that the matter was listed before Registrar Walton that morning and that the Court noted that she had not appeared when the matter was called upon and that Ms Wyatt had not provided the Court with her available dates for hearing of her Notice of Motion as requested by the Registrar.
The Court directed on that occasion that Ms Wyatt email the Registrar with her available dates for hearing of the Notice of Motion by 5 August 2022 and that the failure to do so would result in the motion being referred to the Chief Judge. The costs of the appearance were reserved.
On 10 August 2022 the Equity Registrar emailed the parties informing them that she intended to consult with the Chief Judge the following week about hearing dates and requested an urgent update on their available dates.
On 12 August 2022 Ms Wyatt emailed Registrar Walton (copied to Mr Leitner) noting that she was in the process of waiting on the pro bono assistance to be legally represented for any hearing. The email noted that at that stage Ms Wyatt could not give the Registrar an actual date. The email went on to state as follows: "I don't understand why the hearing for setting aside the Interlocutory Injunction didn't take place, and also why eighteen months have passed without any judge reviewing the whole case. I feel extremely vulnerable right now, and need urgent legal assistance to move forward. Given that my initial defence was not used to defend the injunction, and my procedural fairness was stripped from me, I'm requesting the court give me the time requested to have myself adequately represented legally."
On 18 August 2022 the Equity Registrar emailed Ms Wyatt and Mr Leitner informing them that the Chief Judge had fixed the Notice of Motion hearing for 2 hours at 10:00 AM on 7 October in the Applications List and made the usual order for hearing. The email expressly noted: "Ms Wyatt, please note the Chief Judge has acceded to your request to be given time to be adequately legally represented".
I pause to observe that the above-mentioned notation was essentially conveying that the period of time between 18 August 2022 and 7 October 2022 (being approximately seven weeks) was regarded as a sufficient period of time for Ms Wyatt to secure adequate legal representation.
On 4 October 2022 my tipstaff corresponded with Mr Leiter and Ms Wyatt by email seeking an identification of the process that was being moved on the hearing listed for 7 October 2022, the affidavits and other materials the parties would rely upon and requested the parties to indicate when the Court could expect to receive the Court Book in accordance with the usual order for hearing.
On 4 October 2022 the plaintiff prepared objections to the defendant's evidence.
Late on 4 October 2022 Mr Lietner responded to my tipstaff's email identifying the court process, enclosing a draft Court Book index reflecting his understanding of what was being relied upon by the parties and indicated that subject to comments from Ms Wyatt overnight, the plaintiff would provide two copies of the Court Book as soon as possible.
On 5 October 2022 Mr Lietner provided copies of the Court Book as he had indicated.
Late on 5 October 2022 (8:27 PM) Mr Lietner enclosed a supplementary Court Book and an index.
On 6 October 2022 there was a flurry of activity in the afternoon initiated by Ms Wyatt.
Ms Wyatt sent an email with an attached request document to the Registrar seeking an adjournment of the hearing of the application.
The email stated: "Good afternoon registrar, Please see attached document for the request for an adjournment for tomorrow's hearing. I have been unable to adequately ensure my defence is completed due to severe personal reasons, and am currently fighting through a savage case of covid 19. Thank you for your time regards Janelle Wyatt".
The request document is in the following terms: "Dear Registrar, Re: Request for an adjournment Case 2020/00343464 I am due to appear at Sydney Supreme Court on 7th October 2022. I cannot attend the hearing due to testing positive to COVID 19, and also a traumatic incident that impacted my life greatly for the last two months, leaving me six weeks behind preparing my defence. This incident has a corresponding Police Event number, and charges have been made against the perpetrator in the last five days. I am happy to forward the paperwork to the registrar and judge, outlining the charges, persons involved and what occurred, but ask the court that due to its personal nature, request that this is not shown to the Plaintiff to know the particulars of persons involved for confidentiality purposes. I ask the court to adjourn my case to another date please Your Honour. I would be able to attend court on any date from 17th November 2022, which is when my defence will be thoroughly prepared, allowing two weeks to quarantine if required. I apologise for the lateness of this request. I have suffered severe anxiety, depression and high levels of stress due to this incident, and now have tested positive to Covid 19. I will forward test results if required. I may be contacted on my mobile [xxxxxxxxxx] by email [specified email] or at my above residential address."
At 4:23 PM Ms Wyatt sent an email to my Associate forwarding a copy of the application for adjournment noting that it had been accidentally sent to the Registrar and apologising for the delay (in sending the email to my Chambers).
At 4:46 PM I directed my Associate to send an email in the following terms to the parties: "This email is sent on behalf of his Honour Dear Practitioners, His Honour requests the plaintiff indicate whether the request for adjournment is opposed. In the event the request is opposed, his Honour requests the first defendant to identify what, if any, material other than the "Adjournment document" that is relied upon in support of the application for adjournment. Please ensure all replies are provided to chambers by email with all parties copied in."
At 4:51 PM Mr Lietner responded indicating that the plaintiff strenuously opposed Ms Wyatt's application for adjournment.
At 5:54 PM my tipstaff sent an email to the parties in the following terms: "His Honour at this stage is not minded to vacate tomorrow's hearing. However, his Honour is prepared to permit the first defendant to appear at the hearing by AVL".
An audio visual link (AVL) was provided together with a telephone number and ID code for the telephone connection.
Within minutes Ms Wyatt proceeded to send to my Chambers a number of emails.
Two emails dated 5:56 PM and 5:59 PM were copied to Mr Lietner and relevantly: 1. noted that Ms Wyatt was forwarding supporting documents for the adjournment; 2. noted Ms Wyatt was not coping well and had not been able to engage proper legal representation to defend herself; and 3. requested that I read the supporting documents.
Commencing at 6:11 PM Ms Wyatt sent four emails to my Chambers, none of which was apparently copied to Mr Lietner.
The email at 6:11 PM recorded the following: "Good afternoon your Honour Meek I have a tenant who rents a room at my residence that threatened to burn my house down, then entrapped me on my property by forcing me into a bear hug, and repeatedly kicking my car. I have 25 dogs there I have to feed each day. I had to va ate the property in early August after death threats, and have lived from motel to motel since. Police issued an AVO , and this tenant evaded them for nearly four weeks whilst stalking me when I would come to feed my dogs. I was chased by him with his bow and arrow, then told not to come back, whilst he was sending me pictures of a noose. He was arrested last Friday, charged and given bail and strict orders not to come within 100mtrs of my property. I haven't slept for nearly a week, I just tested positive for covid, and I am in no mental state to represent myself tomorrow. This has impacted my life immensely, and I felt embarrassed to bring this to the courts attention. I am pleading for any type of adjournment so that I can submit my last important piece of evidence now that I'm finally back home. This has been an extremely traumatic time for me, and its not over yet. In my next email I will attach the AVO, which is highly confidential as I don't want his name revealed as the plaintiff knows him. regards Janelle Wyatt"
At 6:22 PM, 6:31 PM, and 6:44 PM Ms Wyatt sent to my Chambers, but without copying in Mr Leitner, emails with certain content and attachments.

[5]

Non-appearance of Ms Wyatt

The application before the Court was listed according to the Court list at 9:30 AM. It is not entirely clear as to how that listing time was fixed within the Court listings having regard to the terms of the email of the Registrar dated 18 August 2022.
Shortly after 9:30 AM Mr Maltz appeared in Court instructed by Mr Lietner. Mr Maltz informed me that he and those instructing him had not seen Ms Wyatt in the Court precincts: T 1.
My staff indicated to me that Ms Wyatt had not attempted to connect to the Court either by the AVL or telephone link.
I made some preliminary comments noting that it was possible that Ms Wyatt had assumed or understood that the listing was to commence at 10 AM (T 1, 9) and that before the matter proceeded I needed to establish whether Ms Wyatt was appearing or not.
Mr Maltz drew my attention to the fact that Mr Woods had been subpoenaed and was present (in the Court precincts): T2.
At approximately 9:37 AM I stood the matter down to permit my Associate to send an email to Ms Wyatt which would be copied to Mr Leitner to ascertain her intentions: T2.
An email was sent by my Associate at 9:44 AM in the following terms: "Dear Ms Wyatt, This matter has been listed to commence at 9:30am today and has been briefly mentioned in court at that time. Mr Maltz of counsel has appeared for the plaintiff. Ms Wyatt are you able to indicate if you are available to appear via the audio visual link previously provided to the parties."
At about 10:04 PM I came back into Court. I indicated that my Associate had sent the above-mentioned email and that there had been no response to the email: T 3.
By 10:07 AM there was no contact by Ms Wyatt and I directed my tipstaff to attempt to contact Ms Wyatt via her mobile phone number which number had been taken from the front page of the Notice of Motion filed by her: T 3. Mr Maltz independently confirmed that the mobile phone number appearing there was the same mobile phone number that those instructing him had for Ms Wyatt: T 3.
My tipstaff used the Court system to attempt to contact Ms Wyatt however there was no answer and the phone rang out: T 3.
In those circumstances I requested Mr Maltz to indicate to me what if anything the plaintiff proposed that I ought to do in the circumstances.
As events have transpired it has come to my attention after the hearing, and the orders dismissing the adjournment application and the set aside consent orders application, that the telephone number which the Court attempted to contact Ms Wyatt during the hearing on 7 October 2022 differed from the mobile telephone number which Ms Wyatt notified in the letter attached to the Registrar in the email at 1:42 PM on 6 October 2022.
That was an unfortunate oversight.
However, the email address at which my Associate contacted Ms Wyatt at 9:44 AM did correspond with the email address in Ms Wyatt's request document (attached to the email at 1:42 PM on 6 October 2022) and all other email correspondence received from Ms Wyatt on 6 October 2022.
Further, my staff monitored the Court AVL and phone system throughout the period of the listing of the matter on 7 October 2022 and informed me that at no stage did Ms Wyatt attempt to connect to the Court via the AVL and phone system.
The attempt by my staff to contact Ms Wyatt by telephone at my request was in any event a step beyond what would ordinarily be taken on the Court's part on listing of her applications.
Ms Wyatt independently was aware of the listing in a number of ways including the email from the Registrar on 18 August 2022, and Ms Wyatt's own email correspondence to my Chambers on 6 October 2022.
Further, there was no response to the email from my Associate sent at 9:44 AM on 7 October 2022.
Ms Wyatt's nonappearance in that sense can be fairly attributed to a decision on her part not to attend by AVL, phone or in person or by some representative on her behalf: cf Ainsworth v Redd (1990) 19 NSWLR 78 at 85 per Kirby A-CJ (comments made in the context of personal service of an originating process).

[6]

Dismissal application

At this stage it was approximately 10:10 AM and Mr Maltz submitted that I ought to dismiss the Notice of Motion with costs: T 3.
I noted that a difficulty that arose was the fact that my Chambers had received a series of emails indicating that Ms Wyatt was seeking to adjourn the listed application: T 3.
I made a number of observations regarding the emails that had been sent to Court by Ms Wyatt being those that were copied to Mr Leitner.
I drew to Mr Maltz's attention the fact that the initial email of Ms Wyatt sent on 6 October 2022 indicated that she was unable to adequately ensure her defence was complete allegedly due to severe personal reasons and that she was currently fighting through a savage case of COVID 19.
I also indicated to Mr Maltz that in particular four emails that had been received after 6 PM including one at 6:11 PM describing what followed was confidential.
I indicated that I proposed to adjourn the matter until 11 AM and arrange for my Associate to send a further email to Ms Wyatt.
At 10:20 AM I instructed my tipstaff to attempt to contact Ms Wyatt again on the phone number. On that attempt the phone rang out: T 4-5.
At approximately 10:30 AM I adjourned.
It 10:35 AM my Associate sent an email to Ms Wyatt copied to Mr Leitner the following terms: "Dear Ms Wyatt, I note chambers have not received a response to the email below. I confirm chambers attempted to contact you via your mobile telephone provided to the court to which there was no answer at approximately 10:10am. Mr Maltz has appeared before his Honour and has requested in your absence that the nom be dismissed with costs. I note a number of emails were received by chambers at yesterday at 6:10pm [sic], 6:31pm, 6:38pm [sic] and 6:44pm which were not provided or copied to Mr Leitner. Contained in the email at 6:10pm [sic] is a sentence that indicated that the next email you proposed to serve was highly confidential. The matter has bene stood down to 11am. Unless there is an appearance before the court at that time by AVL means the court will give consideration to dismiss the applications with costs in a context of which there has been no appearance by you by AVL means, and having now tried a second attempt to contact you by telephone which has simply run out."
At 11:01 AM I recommenced in Court and was informed by my staff that Ms Wyatt had not attempted to make contact via AVL.
I instructed my tipstaff to make one last attempt to contact Ms Wyatt on her phone mobile phone number using the Court system. My tipstaff did that however the phone rang out.
At approximately 11:03 AM the plaintiff proceeded with its dismissal application.
Having reflected on the content of the emails that had been provided to my Chambers but not copied to Mr Leitner it appeared to me that the content of the email sent by Ms Wyatt at about 6:11 PM on 6 October 2022 whilst disclosing that a further email would contain an AVO which was described as "highly confidential" did not of itself claim confidentiality. In those circumstances I considered it appropriate to provide a copy of that email to Mr Maltz.
To ensure there was a degree of formality and order in being able to identify Ms Wyatt's communications with the Court I proceeded to direct my staff to mark the emails in an appropriate way.
Marked as confidential MFI 1 were the emails received at my Chambers at 6:22 PM, 6:31 PM and 6:44 PM on 6 October 2022: T 6.
Marked as MFI 2 was the email sent by Ms Wyatt to my Chambers at 6:11 PM on 6 October 2022: T 6.
At approximately 11:11 AM I asked my tipstaff for more abundant caution to formally call the matter outside the courtroom at least to cover the eventuality that Ms Wyatt might have attempted to send someone on her behalf to appear. My tipstaff did that. However there was still no appearance from Ms Wyatt or anyone on her behalf: T6.

[11]

Discretionary factors

Mr Maltz indicated that I should determine the adjournment application and dismissal application in a way that achieves the just, quick and cheap resolution of proceedings (s 56 CPA): T 13.
Mr Maltz submitted that the way the system is meant to work is that one gets a "fair chance" to put a case but not "every chance". The chance one gets to put a case is within the framework of a fair contest adjudicated by independent decision-makers. But there are principles and rules which constrain infinite indulgence and chance to put one's case: T 20.
Mr Maltz relied upon five discretionary factors in this regard: T 16. Three of those factors (including sub factors) related to explanation for the adjournment application. The factors were: 1. The quality of the explanation - Mr Maltz submitted that not every explanation is as good as any other explanation: T 16. In this regard Mr Maltz relied upon a number of subfactors: 1. the explanation was not in admissible form - Mr Maltz submitted that what makes an explanation a good explanation is that it is supported by ideally admissible evidence in sworn form which is not the case here: T 16; 2. the testability of the explanation - Mr Maltz submitted that Ms Wyatt's explanation is not testable. That was in part because Ms Wyatt was not present, in part because the material Ms Wyatt has provided to the Court is not in a sworn form and in part because Ms Wyatt has provided to the Court material which she does not want disclosed to the other party (here the plaintiff): T 16; and 3. the logicality of the explanation - Mr Maltz submitted that Ms Wyatt had months and months to prepare for this motion; she asked for an extended period of time to prepare and to seek representation; she could still appear (as far as one knows) by AVL or have someone appear for her, and so the COVID‑19 explanation is not an especially good one: T 16. Mr Maltz submitted that in the (disputed) context in which Ms Wyatt had conflict with the tenant from early August 2022, the solution for her was to obtain a representative, even if it was a (McKenzie) friend of the Court, even if not a lawyer, to attend on her behalf and explain Ms Wyatt's position: T 17. 1. The genuineness of the explanation - Mr Maltz submitted that Ms Wyatt's explanation was doubtful in the context in which she had at least on one occasion (28 July 2022) not appeared before the Court and had (on 7 October 2022) not appeared either by telephone or by AVL: T 17. 2. The diligence in proffering the explanation - Mr Maltz submitted that an explanation might in theory be genuine and there be good quality evidence for it, but if it was left to the very last minute there was limited opportunity to examine the explanation: T 18. 3. Prejudice - Mr Maltz submitted (T 18-19) that there were four audiences whose prejudice was relevant, being prejudice to: 1. the plaintiff - explained as prejudice to the plaintiff by wasted time and costs for the hearing, in a context where the lawyers had prepared the case, and not having to turn around and spend time again if an adjournment was granted; 2. the "machinery of justice" - explained as prejudice to the Court and Court staff; 3. third parties - explained in the context in which consumption of Court time is considered a scarce resource allocated in proportion and not be wasted to prevent delays of administration of justice as there were various people competing for time for their cases to be heard; and 4. witnesses - explained expressly in this case as being Mr Woods who had been subpoenaed to come to Court to give evidence on the hearing (for 7 October 2022) and that his time would be wasted if there was an adjournment and had to attend again. Mr Maltz indicated that I should objectively draw the inference that Ms Wyatt was aware that her former solicitor had been subpoenaed to give evidence on the hearing of the application to set aside the consent orders by reference to the plaintiff's submissions at [12(c)]: T 19. 1. The precedential or signalling element of the decision on the applications both generally and specifically - Mr Maltz submitted that if Ms Wyatt is "told that merely uttering the almost magical phrase 'COVID-19' is enough to obtain an adjournment … then that is not the right signal to send in these specific proceedings", in a context in which the proceedings are not concluded. Mr Maltz submitted that if there were to be a published decision then the specific signalling would be magnified and become a general signalling: T 20.
Mr Maltz noted that Ms Wyatt had a "fair chance" to put a case, that she had acted in the way she had (as per the above-mentioned procedural context and discretionary factors), that there are consequences in the way the rules and principles to litigation operate, such that a "fair resolution" of the matter was that the adjournment application and set aside consent orders application should be dismissed and costs awarded against her: T 20.

[12]

Email communications with Judge's chambers

Generally there should be no communication with a judge's chambers in relation to any matter before the Court without the consent of all other active parties to the proceedings: Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971 at [3] per Kunc J.
The reasons for that and the circumstances in which communications are and are not permissible are addressed by his Honour at [19]-[22]: "19 Email has done away with what might be thought to have been the last practical barriers to quick and easy communication with a judge's chambers. There are many types of communication, including by email, with a judge's chambers which can assist the parties and the Court in achieving a just, cheap and quick resolution of proceedings (see s 56 of the Civil Procedure Act 2005 (NSW)). This can include the advance provision of material proposed to be relied upon in court. 20 However, the natural and well intentioned desire on the part of legal practitioners to send a communication to a judge's chambers copied to all the parties, which, at first blush, might appear to promote the efficient conduct of proceedings must always be subordinate to the cardinal consideration that the impartiality of the judge must never be compromised (in fact or appearance) by communications sent without either the knowledge or consent of all parties. As I have said in paragraph [17] above, sending such a communication with a disclosure of the other parties' lack of knowledge or lack of consent does not cure any impropriety. 21 As a practical matter, and consistently with the principles and rules to which I have referred, I summarise the position as follows. There should be no communication (written or oral) with a judge's chambers in connection with any proceedings before that judge without the prior knowledge and consent of all active parties to those proceedings. Particularly in relation to written communications, given the ubiquity and speed of emails, the precise terms of any proposed communication with a judge's chambers should be provided to the other parties for their consent. There are four exceptions to this: (1) trivial matters of practice, procedure or administration (e.g. the start time or location of a matter, or whether the judge is robing); (2) ex parte matters; (3) where the communication responds to one from the judge's chambers or is authorised by an existing order or direction (e.g. for the filing of material physically or electronically with a judge's associate); and (4) exceptional circumstances. 22 There are three other matters. First, any communication with a judge's chambers which falls into any of the categories set out in sub-paragraphs [21] (2), (3) and (4) above should expressly bring to the addressee associate's or tipstaff's attention the reason for the communication being sent without another parties' knowledge or consent. Second, where consent has been obtained, that fact should also be referred to in the communication. Third, all written communications with a judge's chambers in relation to proceedings should always be copied to the other parties."
Specifically, absent consent, it is not an appropriate way to apply for an adjournment to send an email to a judge's chambers email or to the Associate (even if copied to an opponent). Whilst a judge may treat that sort of communication as amounting to an application, there is no obligation on the judge to do so: Magjarraj v Asteron Life Limited [2010] NSWCA 207 per Hodgson JA at [5], Macfarlan JA at [7] agreeing (facsimile communications sent to primary judge).
A party cannot properly expect a judge to consider privately materials emailed to a judge's chambers on a contested application, afortiori where the responding party has not been included in some of the communications allegedly because material is "highly confidential".
Such a practice should not be engaged in. Notions of expediency however well-intentioned must, as noted by Kunc J, be subordinate to the cardinal consideration that the impartiality of the judge must never be compromised (in fact or appearance).

[13]

Principles regarding adjournment applications

The Court has power to adjourn the hearing of proceedings in appropriate circumstances.
There is a statutory power pursuant to s 66 CPA and the Court has an inherent power to adjourn proceedings.
The statutory power to adjourn is to be exercised in accordance with the overriding purpose of the civil procedure legislation and rules to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
The Court in deciding whether to make any order for the management of the proceedings, including an order considering the granting of an adjournment of proceedings, must seek to act in accordance with the dictates of justice: s 58(1)(a)(ii) CPA.
For the purposes of determining what the dictates of justice are in a particular case, the Court must have regard to the provisions in ss 56 and 57 CPA, and may have regard to the matters set out in s 58(2)(b) CPA to the extent which the Court considers them relevant.
The provisions of s 58(2)(b) CPA are as follows: "(2) For the purpose of determining what are the dictates of justice in a particular case, the court - (b) may have regard to the following matters to the extent to which it considers them relevant - (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case."
The principles discussed in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 are frequently be applied analogously to applications for adjournment: ANZ v Mio Amico Pty Ltd [2013] NSWSC 716 at [58] per Davies J. In this respect the Court considers not merely the interests of the parties to the immediate proceedings but also the effect on other litigants in the Court who are or may be prejudiced by adjournment applications necessitating further appointment of hearing dates which have already been fixed.
The Court may in circumstances where the person actually presenting the case (in most cases usually counsel, but including a self-represented party) has or is suffering the effects of COVID-19 grant an adjournment: O'Keefe v Integral Corporate Property Pty Ltd [2022] NSWSC 839. However, in O'Keefe, whilst the application was formally opposed (at [58]), there was no serious dispute that counsel had COVID-19. Indeed, counsel had provided a form of medical certificate (see [39]).
The Court may, by order, dispense with the rules of evidence for proving any matter that is not bona fide in dispute: s 70(1)(a) CPA. However, where a matter is bona fide in dispute formal proof of the disputed matter is required in order for it to be established.

[16]

Rules governing interlocutory applications

Civil procedure rules set out the procedure for making applications, and certain applications are subject to additional procedural requirements depending on the nature (e.g. default or summary dismissal applications): Zuckerman at 305.
Substantive law addresses the types of applications which can be properly brought in any given proceeding: Phillips v Walsh (1990) 20 NSWLR 206 at 209F-G.
Procedural rules in jurisdictions set out the mode by which such applications are to be made and often, though not uniformly, address other matters relevant to the conduct of applications including identifying to whom notice of the application must be given and the evidence in support of such applications: Phillips v Walsh at 209F; see also Zuckerman at 305.
In New South Wales at least, and commonly in other jurisdictions, the procedural rules do not set out in precise detail every aspect of curial steps for the purposes of conducting and resolving litigation.
Rather, the rules proceed on at least some unstated assumptions and implications.
Whilst there is often commonality as between rules in different jurisdictions, there is, as might be expected, no uniformity.
Thus whilst some jurisdictions provide for detailed procedural rules in respect of some matters other jurisdictions do not contain the same level of detail on the same topic.
Specifically, in this Court, in relation to applications the UCPR: provides that interlocutory or other applications are to be made by notice of motion (r 18.1), sets out preconditions for a person moving the Court (r 18.2); sets out the contents required for the notice of motion (r 18.3); identifies the time for service (r 18.4); requires that parties who have not formally appeared must be served personally (r 18.5); specifies some aspects of hearing of interlocutory applications (r 18.6); addresses dealing with a motion in the absence of a party duly served (r 18.7); provides for further hearing of a motion not disposed of on the date fixed for hearing (r 18.8), and allows for directions to be given in proceedings on the motion: r 18.9.
Clearly there are other rules and Practice Notes of the Court which relate to the form and hearing of applications.
Thus, all matters in the Equity General Registrar's List are automatically entered into the Online Court and will be managed in the Online Court unless the Court otherwise orders. Legal practitioners or self-represented litigants appearing in matters entered in the Equity General List must be Registered Users: Practice Note SC Eq 14 - Online Court Protocol. I pause to note that the provisions of Practice Note SC Eq 14 in this regard must be regarded as superseding the provisions of Practice Note SC Gen 12, which indicates that Online Court is not available to self-represented litigants: [4], [7].
In particular, in Equity, specialist lists aside, if it is necessary to bring an interlocutory application, generally the notice of motion will be returnable before the Registrar in Equity in the Online Court. At the first return date the Registrar in Equity will make directions in the Online Court for the preparation of the application for hearing. When the Registrar in Equity considers it appropriate, the application will be listed for call-over before the Applications List Judge or specially fixed for hearing: Practice Note SC Eq 1 - Case Management at [15]-[17].
However it is self-evident that the rules of Court (CPA, UCPR, Supreme Court Rules 1970 (NSW) (SCR) or other relevant rule provisions) and Practice Notes (procedural provisions) do not exhaustively provide for all aspects of initiating, progressing and hearing of interlocutory applications.

[18]

Moving an application

At least one matter that is not at least expressly stated in the procedural provisions but nonetheless assumed or implied, is that on the listing of a motion for hearing, until the listing in the time appointed or fixed by the Court to hear the motion, the applicant or moving party has a choice whether to move it or not.
Thus, giving notice of an application by motion is not the same as moving or proceeding on the motion.
It is not necessary to go into the matter deeply. The practice of the Court, leaving aside applications in an Online Court, is that an applicant must ordinarily move an application in order for it to be considered by the Court, not merely file or give notice of such application.
At least up until the actual time listed for hearing of the application the applicant has a choice whether to move it or not.
In most cases the applicant moves the motion and there is no issue about it. Nonetheless at times, applicants determine not to move the motion for one or more reasons. There may be cost ramifications to that choice, but the choice is there, nonetheless.
Within other realms of law, potentially other considerations apply. Accordingly, in the law of meetings, it is usual for the Chair not to accept a motion until it has formally been moved by a person present at the meeting, although it is said that this is not a legal requirement A D Lang, Horsley's Meetings: Procedure, Law and Practice (7th ed, 2015, LexisNexis) (Horsley's) at [10.10] page 122.
It is said that the Chair is entitled to put a motion to the meeting even if it has not been formally proposed or seconded: Horsley's citing Re Horbury Bridge Coal, Iron and Waggon Co (1879) 11 Ch D 109. I note James LJ simply expressed the opinion at 118 (at the conclusion of the report) that if a Chairman puts a question without its having been either proposed or seconded by anybody "that would be perfectly good".
Further to what I have noted above, the practice of the Court is that it does not usually approach the question of whether a motion is formally moved with technicality.
There might not be in any given case a bright line which identifies a point at which the motion is active or a live issue before the Court
However, there will be occasions, including this matter, where despite the fact that a party has not formally appeared to move or proceed on a notice of motion, that the Court nonetheless considers that the motion is active or a live issue before the Court, and for that reason is amenable to being addressed.

[20]

Principles regarding dismissal of interlocutory applications in absence of applicant/moving party

From time to time the Court encounters situations in which the moving party on a notice of motion is absent and the Court has to consider what it will do in circumstances where a notice of motion has been listed for hearing but the moving party is absent and the Court is requested to dismiss the notice of motion.
Different rules apply as between jurisdictions and courts and tribunals within jurisdictions. A simple example is that in the Administration Appeals Tribunal an application may be dismissed if a party, other than the decision maker, fails to appear personally or by representative at the hearing of the proceeding, a directions hearing, or an alternative dispute resolution (ADR) process: s 42A(2)(a) Administrative Appeals Tribunal Act 1975 (Cth).
In New South Wales, whilst the UCPR contain a specific provisions as to the hearing and disposing of a motion: 1. in the absence of a party served with the notice of motion r 18.7; 2. where a plaintiff does not appear on a hearing (which term includes interlocutory hearings) r 13.6; and 3. where a party is absent when a trial is called (r 29.7) the UCPR does not at least in express terms indicate what the Court may do in relation to a hearing in which the applicant or moving party on a motion does not attend.
Rule 18.7 is in the following terms: "18.7 Motion may be dealt with in party's absence If service of a notice of motion on any party is required by these rules, and notice of motion has been duly served on that party, the court may hear and dispose of the motion in the absence of that party."
Rule 13.6 is in the following terms: "13.6 Non-appearance by plaintiff (1) If there is no attendance by or on behalf of a plaintiff at a hearing of which the plaintiff has had due notice, the court may adjourn the hearing to another date and direct that not less than 5 days before that date a notice of the adjournment be served on the plaintiff advising that the proceedings may be dismissed if there is no attendance by or on behalf of the plaintiff at the adjourned hearing. (2) If the plaintiff has been given notice in accordance with subrule (1) and there is no attendance by or on behalf of the plaintiff at the adjourned hearing, the court may dismiss the proceedings. (3) This rule does not restrict any other power of the court to dismiss proceedings".
Rule 29.7 is relevantly in the following terms: "29.7 Procedure to be followed if party is absent (1) This rule applies when a trial is called on. (2) If any party is absent, the court - (a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or (b) may adjourn the trial. … (4) If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the court may dismiss the proceedings. (5) Subrules (3) and (4) do not limit the court's powers under subrule (2)."
I note that r 29.7 UCPR addresses the procedure to be followed when a trial is called on and a party is absent. However by s 3 CPA "trial" means any hearing that is not an interlocutory hearing.
By r 1.2 UCPR words and expressions that are defined in the Dictionary at the end of the rules have their meanings as set out in the dictionary. Relevantly at the end of the dictionary to the UCPR there is a note indicating that words and expressions (which follow) which are defined in the CPA either for the purposes of the CPA generally or for the purposes of particular portions of the CPA and consequently have the same meanings in the UCPR. One of those words is "trial".
Accordingly the provisions of r 29.7 do not in their terms apply or define the procedure to be followed if the moving party on an interlocutory application is absent.
Sometimes rules of court are framed in the context in which some matters are not expressly stated because they are so obvious that they go without saying.
It is not hard to find other cases in which a motion has been filed by an applicant but on the listing of the motion there is no appearance by or on behalf of the applicant and the Court has proceeded to determine the notice of motion in the absence of the applicant: e.g. Sebie v Pham [2018] NSWCA 332; BMW Australia Finance Limited v Nguyen [2019] NSWSC 1223.
Those cases and a number of others like them do not expressly identify the power of the Court to dismiss applications or notices of motion in the absence of the applicant or moving party.
The position is the same in relation to cases dealt with before the introduction of the UCPR, when the main procedural rules were the SCR. One example of this is the decision of Palmer J in Samootin v Shea [2003] NSWSC 171.
That case involved a contested application by the plaintiff to vacate the hearing of the proceedings which have been fixed before Palmer J for five days due to commence approximately a week from the time of the application was made.
The plaintiff who had made the application was not in fact before the Court on the day the application was due to be heard.
In the result his Honour ultimately acting "in the interests of justice" concluded that the plaintiff's notice of motion should be heard in her absence and dismissed it with costs (with consequence that the trial would proceed the week after the application was determined).
It may be that if an applicant on a notice of motion does not appear on the hearing of the notice of motion, the motion is then susceptible to being dismissed in a way analogous to a situation where the rules clearly provide that a notice of motion can be dismissed if a respondent does not appear: r 18.7 UCPR.
However, in the absence of a specific rule dealing with the absence of an applicant on the listing of application by notice of motion, it is appropriate at least to have regard to the overall structure of the procedural provisions to understand what might be permissible in terms of a dismissal application in the absence of the applicant or moving party.
The provisions of the CPA and any rules of court including the UCPR are to be construed and applied, and the practice and procedure of the Court are to be so regulated, as to best to ensure the attainment of the objects referred to in s 57(1) CPA which are objects to which the Court is to have regard for the purposes of furthering the overriding purpose of CPA and the rules of court.
The overriding purpose of the CPA and rules of court in civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56 (1) CPA.
The objects in s 57(1) are as follows: "(a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties."
Division 1 of Pt 6 sets out a number of guiding principles in respect of case management which by reference to the headings of the relevant sections are relevantly as follows: 1. the overriding purpose of the CPA and UCPR: s 56; 2. the objects of case management: s 57; 3. the Court to follow the dictates of justice: s 58; 4. elimination of delay: s 59; and 5. proportionality of costs: s 60.
Division 2 of Pt 6 CPA deals with and sets out the powers of the Court to give directions.
Again by reference to the section headings it may be noted that Div 2 encompasses the following powers: 1. directions as to practice and procedure generally: s 61; 2. directions as to the conduct of hearings: s 62; and 3. directions with respect to procedural irregularities: s 63.
Despite the absence of a express provision dealing with dismissal of applications or motions in the absence of the applicant or moving party, a holistic approach to the procedural provisions guided by the case management considerations gives a relatively clear indication that the Court has power to dismiss an application by motion in circumstances of nonappearance by the applicant or moving party.
Fundamentally it seems to me that once an application is listed before the Court for hearing, at least where a respondent has given some prior notice to the applicant that the application is contested or opposed in some way, the respondent is permitted within reason to ask the Court to make orders on the notice of motion without formal notice to an absent applicant on the date fixed for hearing.
Without attempting to be prescriptive of what, within reason, may be asked by a respondent, I consider that a respondent can at least request outcomes consistent with what might be reasonably expected in any given case. That includes an outcome either permitting the relief sought in the notice of motion, or adjourning the notice of motion or seeking dismissal of the notice of motion.
I note, though without intending to be exhaustive, the reasons for that include the following: 1. by Court Practice and in any event inherent in an application made by an applicant or moving party to the Court, on notice to the responding party is that the Court does not under the procedural provisions mandate a written response to the relief sought but almost universally, but at the very least frequently, requests orally at the actual hearing of the application the respondent's attitude to it; 2. in the case of trials or matters brought on for final hearing by the proper process, the general position is that a plaintiff is said to be entitled to have it heard and determined: ANZ v Mio Amico Pty Ltd per Davies J at [60] citing Short v Short [1960] 1 WLR 833 at 849 per Devlin LJ; Watson v Watson (1968) 70 SR (NSW) 203 at 206 per Asprey JA. Similar considerations very arguably apply by analogy in relation to interlocutory applications and in relation to a defendant or other respondent to an application; 3. on the hearing of a party's notice of motion, any other party may make an application in relation to the proceedings: r 18.6(2) UCPR; 4. a party may move the Court to make an order without notice of motion having been filed or served if, relevantly, preparation, filing or service of the notice would cause undue delay or other prejudice to the person by whom the order is sought or the Court dispenses with the requirement for such notice to be filed or served or under the rules as a matter of practice of the Court the motion is not required: r 18.2(2)(b)-(d) UCPR; 5. the Court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case: s 14 CPA; 6. the Court may dismiss a claim where a party has failed to comply with the direction of the Court: s 61(3)(a) CPA; and 7. at any stage of proceedings, the Court may give such judgment, or make such order, as the nature of the case requires, whether or not a claim for relief extending to that judgment or order is included in any originating process or notice of motion: s 90 CPA, r 36.1 UCPR.
I note that the provisions of s 61(3)(a) CPA which permits the Court to dismiss a claim where a party has failed to comply with the direction of the Court expressly does not limit any other power the Court may have to take action of the kind referred to in subsection (3) or to take any other action that the Court is empowered to take in relation to a failure to comply with a direction given by the Court: s 61(4) CPA: T 12.
There is a nice question as to whether the Court's power to dismiss a claim in proceedings pursuant to s 61(1), (3), (4) CPA is a "direction" under Div 2 for the purposes of s 58(1)(a)(iv) CPA or whether a "dismissal" is of a different character to a "direction".
Even if it is not, it seems relatively clear from caselaw that the Court ought to act in what Palmer J described in Samootin v Shea at [47] as the "interests of justice".

[21]

Unrepresented litigants

The approach of the Court in assisting an unrepresented litigant is properly understood and to be considered in the context of the Court's obligation to ensure a fair trial according to law for all of the parties in the proceedings.
In Bauskis v Liew [2013] NSWCA 297 Gleeson JA (Beazley P and Barrett JA agreeing) addressed the question of the Court's duty to unrepresented litigants in the context of procedural fairness. His Honour referring to the decision of Beazley JA (as her Honour then was) in Hamod v New South Wales [2011] NSWCA 375 at [309]-[316] stated the following propositions in respect of the Court's duty: "The Court's duty to unrepresented litigants [66] The appellants' submissions raise the issue of the role of the court in ensuring a fair hearing. The court's duty to unrepresented litigants was examined in Hamod v New South Wales [2011] NSWCA 375 at [309]-[316] by Beazley JA (as her Honour then was) where the authorities are collected. The following propositions emerge from those authorities relevant to the present case. [67] First, the court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case: see Jae Kyung Lee v Bob Chae‐Sang Cha [2008] NSWCA 13 per Basten JA at [48]; Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135 ; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500 ; (2005) 94 SASR 154. [68] Secondly, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: see Tomasevic v Travaglini [2007] VSC 337 ; (2007) 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666 ; (2002) 122 FCR 19 at 23; NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 944 at [11]; Nagy v Ryan [2003] SASC 37 at [52]-[53]. [69] Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: see Bhagwanani v Martin [1999] SASC 406 ; (1999) 2004 LSJS 449; Clark v State of New South Wales (No 2) [2006] NSWSC 914. [70] Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant: Rajski v Scitec Corp Pty Ltd (Court of Appeal, 16 June 1986, unreported) per Samuels JA at 14."

[22]

Determination of the adjournment application

Although on one view, I had no obligation to treat Ms Wyatt's communications by email as an adjournment application (Magjarraj v Asteron Life Limited [2010] NSWCA 207 at [5], [7]) I did treat it as an application, albeit that although it had been foreshadowed it was not formally moved.
As I have noted Mr Maltz regarded Ms Wyatt's communications in respect of the adjournment application as being a live issue.
Thus it was one of those occasions where despite the fact that a party has not formally appeared to move or proceed on a notice of motion, the Court nonetheless considers that the motion is active or a live issue before the Court, and for that reason is amenable to being addressed.
I refused the adjournment application.
The essential reasoning for that refusal was and is as follows.
First, the foreshadowed application was strenuously contested: exhibit P4
Secondly, it was made clear to both active parties that simply based on email communications I was not minded to vacate the hearing. However, I expressly permitted Ms Wyatt to appear at the hearing by AVL and included an option for telephone joinder: exhibit P4.
Thirdly, in a context in which Ms Wyatt had been made aware of the date of the hearing by the Registrar on 18 August 2022 (exhibit P3) and by her own correspondence the prior afternoon acknowledged the listing for hearing (exhibit P4), there was no appearance by on behalf of Ms Wyatt.
Fourthly, in the context of serious dispute as to the evidentiary basis for any adjournment application, there was no satisfactory admissible evidence in support of it. What was provided, by email to the Court and copied to the plaintiff, were assertions Ms Wyatt was "unable to adequately ensure (her) defence is completed due to severe personal reasons" and "that (she was) currently fighting through a savage case of Covid 19": exhibit P4.
There were further assertions that Ms Wyatt could not attend the hearing due to "testing positive to COVID 19, and also a traumatic incident that impacted (her) life greatly for the last two months". Reference was made to an incident that had been the subject of a police event number and "charges have been made against the perpetrator" and further assertions that Ms Wyatt "ha(s) suffered severe anxiety, depression and high levels of stress due to this incident, and now have tested positive to Covid 19": exhibit P4.
The request document attached to the email sent at 1:42 PM on 6 October 2022 asserted "I will forward test results if required".
For reasons explained by Gleeson JA in Bauskis v Liew (supra) the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties and the presiding judge must remain at all times the impartial adjudicator of the matter. Specifically, the duty of the presiding judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised.
Ultimately, the choice of what if any material Ms Wyatt placed before the Court to support her adjournment application, was a matter for herself.
It is clear that Ms Wyatt was aware of the distinction of not merely outlining what material was relied upon but the provision of such material: MFI 2.
Various types of material could have been provided by Ms Wyatt to establish, in the face of contest, the basis of her adjournment application. Conceptually this included sworn evidence by herself and or a medical practitioner regarding the matters she referred to as some form of evidentiary support for the assertion of her suffering from COVID 19.
On the facts here, there was no production by Ms Wyatt of even a photograph or screen shot of any test whether it be a Rapid Antigen Test (RAT), which Mr Maltz described as the lowest form of evidence that one could expect (T 14) or a Polymerase Chain Reaction Test (PCR Test).
There are many cases in which courts will reject provision of medical certificates that lack any specificity as to a party's condition or symptoms: e.g. Magjarraj v Asteron Life Limited [2009] NSWSC 1433 per Barrett J (as his Honour then was) at [20]; Connam Pty Ltd as trustee for Christodoulou Family Trust v Lazarou [2019] NSWSC 1268 per Lonergan J at [10]; Uy v Ng [2021] NSWSC 429 at [17]-[22] per Rees J.
Here, there were assertions of Ms Wyatt's conditions. However in the face of contest, there was no independent evidence supporting Ms Wyatt's assertion of a disabling physical or mental health condition. As submitted by Mr Maltz, the explanation which was provided was not presented in the form which was able to be fairly or reasonably tested by the plaintiff.
Fifthly, in terms of s 58(2)(b) factors the following may be noted: 1. the set aside consent orders application does not appear to have been approached with expedition by Ms Wyatt. The orders sought to be set-aside were made 22 months ago; 2. there has been a degree of default on the part of Ms Wyatt. Ms Wyatt had taken some steps towards prosecuting the the set aside consent orders application in compliance with the directions made by Kunc J on 29 April 2022 in so far as she swore an affidavit on 13 May 2022. Ms Wyatt did not serve any reply evidence in accordance with the timetable, although conceptually that might be explicable by her making a forensic decision not to do so. However there was clear default in Ms Wyatt not serving submissions by 10 June 2022. Further there was default in that Ms Wyatt did not indicate to the plaintiff the evidence she wanted placed in the Court Book for the purposes of the hearing of the set aside consent orders application: T 16; 3. opportunity was given to Ms Wyatt to engage legal representatives. The period of time between 11 August and 10 October was a period of over eight weeks within which Ms Wyatt had opportunity to obtain adequate legal representation and even over seven weeks if one dates it from the time that the hearing date was actually allocated. There was no explanation as to what steps had been taken in the context of being provided adequate time to prepare, to engage a legal representative to act for Ms Wyatt to assist her and she had foreshadowed; 4. the set aside consent orders application had been the subject of a listing before Kunc J over five months ago and with specific directions given including the direction that no further evidence be permitted to be relied upon without leave of the Court; 5. Mr Maltz pointed to prejudice on the part of the plaintiff in terms of cost and time; 6. Mr Woods, a solicitor had been subpoenaed to appear and in fact did appear and would suffer prejudice by the application being adjourned in the context in which yet again he may be required to appear; and 7. the dismissal of the adjournment application would not finally determine Ms Wyatt's rights in the proceedings on the summons (as distinct from the interlocutory regime created by the consent orders entered into on 9 December 2020).
Sixthly, despite assertion: 1. there was no identification or detail of what remained to be carried out by way of the preparation of Ms Wyatt's "defence"; 2. there was no attempt by Ms Wyatt to communicate with the Court in any way shape or form on 7 October 2022; 3. there was no sending attempt by Ms Wyatt to request a friend to appear on her behalf or communicate with the Court on her behalf; and 4. there was no explanation of the lateness of the adjournment application in circumstances where the matters which Ms Wyatt asserts were vexing her, and in particular the asserted traumatic incident had occurred seemingly in early August 2022: MFI 2, exhibit P4.

[25]

Considerations relevant to the dismissal application

In relation to Mr Maltz's submissions regarding the procedural context I accept his submissions that Ms Wyatt had requested and been given an adequate time to arrange legal representation and that there was general delay in Ms Wyatt applying to set aside the consent orders. She had not applied for expedition for that belated application.
Whilst Mr Maltz made submissions regarding Ms Wyatt having history of not attending, his only demonstrated history of prior failure was an instance on 28 July 2022 and, I did not consider, at least on that basis alone that was a basis for dismissal of the set aside consent orders application.
In relation to Mr Maltz's identified discretionary factors I note that a number of the considerations relied upon by Mr Maltz overlapped with those that I have already dealt with in relation to the determination of the adjournment application.
In particular I note as follows.
It was clear following clarification with Mr Maltz that he submitted that I had no satisfactory admissible evidence before me demonstrating that Ms Wyatt has COVID-19 such as would preclude her from attending: T 13, 19. Although Mr Maltz noted that it was not necessary for me to find so, in order for the application to set aside the consent order be dismissed: T 14.
Nonetheless, for the reasons that I have outlined above in relation to the adjournment application, I do not regard there being properly admissible evidence to support it. In any event even if Ms Wyatt's assertions regarding her disabling physical and mental health conditions were to be had regard to, in terms of Mr Maltz's submissions, the quality of the explanation was sufficiently low to be a consideration favouring dismissal.
I accept Mr Maltz's submission that Ms Wyatt's explanation was not adequately testable by the plaintiff.
As to Mr Maltz's submission that Ms Wyatt's COVID‑19 explanation for not appearing is not an especially good one, that is something that requires analysis. I noted that arguably the Court could take judicial notice that any member of the community could contract COVID‑19 on short notice and that symptoms start to present themselves with in a very short space of time. Thus, contracting COVID‑19 per se might in any given context be an adequate explanation but also a logical explanation for nonappearance.
Ultimately as I understood it the substance of Mr Maltz's point was that in a context in which Ms Wyatt had months to prepare and engage legal representation, the COVID‑19 explanation for not appearing belied or distracted from the lack of preparation evident from at least 11 August 2022. In that respect, it seemed to me that that was a material consideration counting against the granting the adjournment application and favouring the dismissal application.
I noted during the hearing that it was curious that in the context of Ms Wyatt asserting a severe case of COVID 19 she had been able to engage in a flurry of email activity late on 6 October 2022 (the afternoon prior to the hearing). That suggested that she was able to engage in some communication with the Court in circumstances where she asserted she was suffering and yet no attempt had been made by her to appear before the Court or contact the Court in any form the following morning, 7 October 2022, being the day listed for hearing: T 18.
Mr Maltz indicated that I was entitled to draw an inference that the explanation for Ms Wyatt's nonappearance was not genuine and that she did not really intend to prosecute the motion, it being "really .. just sand in the gears of justice": T 18.
I was reluctant to affirmatively find that the explanation for Ms Wyatt's appearance was not genuine. Nonetheless, in light of the quality of her explanation, which did not arise above assertion, the failure to provide even some independent evidence of COVID 19 or disabling mental health conditions such as by medical certificate and the inability of the plaintiff to test any assertion it was not necessary to find that Ms Wyatt's explanation was not genuine. Rather there was absence of adequate admissible and testable evidence of explanation.
I accept Mr Maltz's submissions regarding prejudice to the plaintiffs is also in particular prejudice to Mr Woods who was subpoenaed to come to Court to give evidence.
Clearly there is also some prejudice to other litigants within the Court system if the application had not been dismissed and had to be allocated a further date for hearing. I accept that this is a contributing factor. Any adjournment of the application will involve some degree of prejudice to other parties competing for new hearing dates. However I would not, at least on that ground alone, have dismissed the application.
As to Mr Maltz's submission regarding the precedential or signalling element of any decision to dismiss the set aside consent orders application I do not regard that is a compelling consideration and have not had regard to it.
Mr Maltz, as submitted above, did indicate that none of the considerations he put forward were decisive and I should have regard to the totality of them.
Whilst it is clear that I have not accepted some of Mr Maltz's submissions, the matters that I have accepted coupled with the other matters that I have mentioned led me to consider that on the whole I ought to dismiss the set aside consent orders application.

[26]

Costs principles

I addressed general principles regarding costs in In the matter of Black Tie Holdings Pty Ltd (No 2) [2022] NSWSC 856 (Black Tie Holdings Pty Ltd (No 2)).
In Black Tie Holdings Pty Ltd (No 2) I stated at [44]-[49], [51]: "44 Costs are in the discretion of the Court, subject to the Civil Procedure Act 2005 (NSW) (CPA), rules of Court and any other Act: s 98(1)(a) CPA. 45 The Court has full power to determine by whom, to whom and to what extent costs are to be paid: s 98(1)(b) CPA. 46 The Court may order that costs are to be awarded on the ordinary basis or on an indemnity basis: s 98(1)(c) CPA. 47 An order for costs may be made by the Court at any stage of the proceedings or after the conclusion of the proceedings: s 98(3) CPA. 48 The general position is that if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: r 42.1 UCPR. 49 If the Court makes an order for dismissal of the proceedings then generally speaking, unless the Court orders otherwise, the plaintiff must pay the defendant's costs of the proceedings to the extent to which they have been dismissed: r 42.20(1) UCPR. .. 51 Generally costs payable to a party under an order of the Court are to be assessed on the ordinary basis: r 42.2 UCPR."
The above provisions set out the general position.
It is possible to find instances in caselaw where a party giving notice of motion does not appear at the hearing and has been ordered to pay the respondent the costs incurred by the respondent: e.g. Samootin v Shea (supra); Sebie v Pham (supra); Berry v The Exchange Trading Co (1875) 1 QBD 77. However, in none of those cases is there any particular analysis of the question of costs. I might add that that is hardly surprising in the circumstances. The report of Berry v The Exchange Trading Co in fact does not contain any reasoning at all regarding the matter. In essence, it is simply a report noting the decision of dismissal and costs.
It seemed to me that the statutory provisions that I have referred to above in particular r 42.1 provided sufficient basis for the making of the costs order which I made, in the absence of any submission otherwise and it not appearing to me that there was some proper basis to make some other order as to the whole or any part of the costs.
Nonetheless, I note that the costs order is an interlocutory costs order and in circumstances in which I was not asked to make in "otherwise" order, the costs ordered do not become payable until the conclusion of the proceedings.

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