Ms Chadia Chahhoud and her four children aged between 3 and 14 are temporarily living in Lebanon with her parents in Hboub, a town about 40 km north of the capital, Beirut. Ms Chahhoud is the first defendant in proceedings listed to commence in this Court on 9 November 2023 for two days. She faces a civil debt claim of over $1.5 million and an application for the judicial sale of a rural property she owns in the Australian Capital Territory, which is said to be security for the debt. Ms Chahhoud is separated from her husband, Mr Elias Taleb, the second defendant, against whom summary judgment has already been entered in the proceedings.
Ms Chahhoud wishes to defend the claim. Whilst not especially complex, the proceedings will be document heavy. Put simply the proceedings relate to a contract for the purchase by the defendants of shares in several commercial entities and the payment of consideration for those shares to the plaintiffs/vendors. The payment of the consideration was secured over assets including Ms Chahhoud's ACT rural property. Although presently imperfectly pleaded, Ms Chahhoud's defence squarely raises issues concerning her need for and lack of independent advice, as a claimed third-party mortgage security provider in the form of the ACT property. It can be expected that the plaintiffs will contend that she is not a third-party security provider, that she has an interest in the shares being acquired, and she is liable to pay the full debt outstanding.
Her options are to return to Australia for the hearing, or for the proceedings to be conducted by Audio Visual Link ("AVL") pursuant to a direction given under the Evidence (Audio and Audiovisual Links) Act 1998, s 5B(1) ("AVL Act"). The operation of this statutory provision was recently discussed and explained by Meek J in Zhang v Zhang [2022] NSWSC 924. She submits that both these options are impractical for her right now, so she applies for an adjournment of the proceedings.
As to appearing by AVL, the Court conducted an AVL directions hearing with her on 11 October 2023. She was appearing from Hboub. Her internet connection for this directions hearing was not available by broadband but was provided through a 4G telephone signal using a telephone network in Lebanon. This connection was intermittent, apparently due to local electricity shortages and 4G signal failure. The transmission was completely interrupted at least half a dozen times during the directions hearing and sometimes vision but not sound was lost. This experience confirms the proceedings cannot be properly conducted over a reliable internet connection from Hboub within a reasonable timeframe using AVL. This is already the kind of case that would be challenging to conduct by AVL.
The suggestion of giving evidence by AVL must be rejected here on two grounds. First, the unreliable 4G telephone connection means that "the necessary [AVL] facilities are unavailable and cannot reasonably be made available": AVL Act, s 5B(2)(a). Secondly, the intermittent internet connection combined with the need for many documents to be used in the proceedings would make [an AVL] direction unfair to both parties": AVL Act, s 5B(2)(c).
As to returning to Australia, Ms Chahhoud faces a wrenching dilemma. Her husband, the second defendant, from whom she is separated is an Australian citizen. Ms Chahhoud is only an Australian permanent resident, not a citizen. Her three eldest children were born in Australia and are Australian citizens. They could return to Australia with her if she came back for the trial in November. But her youngest daughter, a child of her marriage, was born in Lebanon and is not a citizen.
These circumstances make Ms Chahhoud's return to Australia impractical at the present time. The Court is told that under current Australian immigration law and policy Ms Chahhoud is not permitted to bring her three-year-old back into this country on her own, because her child is not a citizen, nor is Ms Chahhoud. The Court is told that non-citizen children can only be accompanied back to Australia by citizens. Her husband is not available to accompany her back to Australia. Ms Chahhoud's parents in Hboub are elderly and not in sufficiently good health to be able to care for a three-year-old child for any period.
Moreover, Ms Chahhoud does not want to leave any of her children in Lebanon without her during the current instability in the Middle East. At the time of publication of this judgment, the State of Israel has warned its own citizens to evacuate areas close to the border with Lebanon in apparent anticipation of the potential for military operations between armed forces in Israel and in Lebanon. Hboub is about 150 kms from the Israel border. Ms Chahhoud's professed anxiety not to leave her youngest child behind in Lebanon during the next month is both reasonable and understandable.
There is no other realistic option but to adjourn the proceedings. But they were set down in July for the hearing in November. They cannot be put off indefinitely and must be adjourned on terms that will ensure that they come on for hearing in the near term. Ms Chahhoud has applied for citizenship for her youngest daughter. A copy of the application has been forwarded to the Court and is in evidence. Ms Chahhoud says that she is told it may take another 2 to 3 months for her daughter's citizenship application to be processed. As a condition of the adjournment, Ms Chahhoud will be required to undertake for the Court to pursue her application for citizenship for her youngest daughter with all due dispatch.
In the ordinary course an adjournment at the request of Ms Chahhoud would result in her paying the plaintiff's costs thrown away by the adjournment, notwithstanding the extenuating circumstances. The situation that has arisen and the need for adjournment is not the plaintiff's fault.
The parties do not need an unnecessary contest about costs or indeed a costs assessment. The Court asked the parties what costs would be thrown away by the adjournment following the adjournment. Three weeks out from a hearing, where counsel can undertake other work, the practice no longer is for counsel to charge cancellation fees. The plaintiff submitted that there had been two unnecessary directions hearings in preparation for the hearing on 9 November 2023. In the Court's view only one of those directions hearings was wasted by reason of the adjournment. Some other work was done at the directions hearings to prepare the matter for final hearing. For example, it appears from these reasons and from counsel now briefed on behalf of Ms Chahhoud that some revision of the Defence will be necessary.
The costs thrown away for one directions hearing were claimed to be approximately $1,400. The Court has ample power under Civil Procedure Act 2005, s 98(4)(c) to fix costs to avoid the incurring of other unnecessary costs and procedural distractions while the parties concentrate on the main issues. So the Court has decided to make a specified gross sum costs order instead of assessed costs in the sum of $1,000 to cover the costs of solicitors, counsel and disbursements thrown away by reason of the adjournment.
Sufficient time should be allowed for Ms Chahhoud to prepare for hearing and to obtain citizenship for her youngest child. But the plaintiffs indicate that they have overseas commitments from April next year. The Court will request the Real Property List judge to consider the listing of the matter in February or March 2024, to accommodate those factors if that is possible.
This case will always be difficult to conduct by AVL. Therefore, the efficient and timely conduct of the administration of justice in this Court in these proceedings will in part depend on the timing of the consideration by the Department of Home Affairs of the citizenship application for Ms Chahhoud's youngest daughter. The Court will note in its orders the desirability of the Department of Home Affairs giving early consideration to that application to assist the work of this Court.
For these reasons the Court will make the following orders and directions:
1. Vacate the hearing of these proceedings listed for Thursday, 9 and Friday 10 November 2023
2. Order that the first defendant pay the plaintiff's costs thrown away by the vacated hearing which costs the Court fixes under Civil Procedure Act 2005, s 98(4)(c) in the gross sum of $1,000.
3. The proceedings are listed for further directions in the Real Property List on Friday, 27 October 2023 with a view to the fixing of a hearing date.
4. The parties also have liberty to approach the Real Property List judge in chambers before that date with a view to attempting to re-fix the proceedings in March 2024.
5. The Court notes the undertaking to the Court of the first defendant by her counsel that she will pursue with all due dispatch the application for citizenship for her youngest daughter, to enable the first defendant to travel with her daughter to Australia for a trial in the early part of next year.
6. The Court notes that one of the main reasons these proceedings have been vacated is that an AVL hearing from Lebanon is impracticable and the first defendant cannot travel to Australia in her present circumstances with her daughter, because she is only a permanent resident and her youngest daughter is not an Australian citizen.
7. The Court further notes that the resolution of this impediment to the first defendant appearing for the trial of this matter in the Supreme Court lies with the Department of Home Affairs and therefore the Court requests that to aid the efficient administration of justice in this Court that the Department of Home Affairs give close and early consideration to Ms Chahhoud's application for citizenship of her daughter.
8. Grant liberty to apply.
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Amendments
18 October 2023 - coversheet - appearances
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Decision last updated: 18 October 2023