Mr S Habashy (in person)No appearance for the second defendant
Judgment (5 paragraphs)
[1]
The Background to this application
The plaintiff commenced proceedings for defamation for publications in "Egypt News" on 5 March 2014 and 2 April 2014. The defendants, who appeared for themselves at the commencement of this litigation, filed a Defence on 4 September 2014 which failed to identify any of the defences generally pleaded under Defamation Act 2005 (NSW). The defendants then retained solicitors and Mrs Barnett of counsel. Following an imputations argument, an Amended Statement of Claim was filed: Ramandious v Habashy [2014] NSWDC 237.
On 22 December 2014 the parties were ordered to attend a court ordered mediation before an Assistant Registrar of this court on 19 March 2015. On 17 March 2015, two days prior to the mediation, the defendants and their solicitors attended an informal settlement conference at the offices of the plaintiff's solicitors. The matter failed to be resolved in the course of this informal settlement conference. According to the affidavit of Mr Simon Maxwell of 15 April 2015, no indication was given to him at the time of that conference that either of the defendants would fail to attend the mediation on 19 March 2015, nor was there any indication that their solicitors would also not be attending.
At 2:41pm on Wednesday 18 March 2015, the day the before the mediation was due to take place at the District Court, Mr Maxwell received (both by email and facsimile) the following notification from the defendants:
"18/03/2015
Re: Mediation between Fr. Ramandious & Samir Habashy and Ezat Andrawis [sic]
Sanford legal [sic]
Level 2, 5 Belmore ST [sic] Burwood
Attention: Solicitor in charge of father G. Ramandious "Mr. Maxwell"
We would like advise [sic] due to medical Grounds [sic] we can not [sic] attend mediation tomorrow 19/03/2015, [sic]
And we advise that we have also advised the court to arrange for another time.
And we note that our solicitor have been instructed to advised you of the same this morning.
Warm regards.
Samir Habashy
[Signature]
Ezzat [sic] Andrawis [sic]
[Signature]"
Mr Maxwell wrote to the solicitors acting for the defendants at 4:00pm that afternoon as follows:
"We refer to your email dated 18 March 2015, received by us at 2.41 p.m. this afternoon.
You state that Mr Habashy will not be able to attend the Mediation scheduled for Thursday 19th March, 2015 due to a "medical condition".
Your email takes us by surprise. Mr Habashy attended (with your Mr Hagen) an informal settlement conference at our office only yesterday afternoon, and did not show any signs of illness or incapacity.
You go on to say "Therefore, I am advising that regretfully the Mediation appears not to be able to proceed tomorrow."
You have not provided us with any material or medical certificate substantiating this "medical condition", and certainly nothing to say why it is that Mr Habashy cannot attend the mediation. Unless his condition is severely debilitating, we would have thought attendance at the mediation would not be onerous, given he is simply required to provide instructions.
Is it the case that you intend applying for the mediation to be vacated?
As you would be aware, Rule 20.6(1) of the Uniform Civil Procedure Rules, 2005, requires that all parties be in attendance at the Mediation. It cannot proceed without one (or both) of the Defendants.
The mediation date was set on 22 December 2014. Both we and our client are ready to attend, and arrangements have been put in place for this to occur.
If it is the case that Mr Habashy does not attend tomorrow, we will ask that the matter be referred to the Duty Judge (or the Defamation List Judge) for orders, which will include an order that the Defendants pay the plaintiff's costs thrown away by reason of any adjournment of the mediation on an indemnity basis.
We will rely upon this (and any previous correspondence going to this issue) on the question of costs.
Addendum
In the time spent preparing this letter to you, we have received an email from [email addres]. We have also now received a facsimile transmission from your clients. We enclose a copy of the document.
This letter, addressed to Simon Maxwell of our office, states, in part, "We would like advise due to medical Grounds we cannot attend mediation tomorrow 19/03/2015." [sic]
It appears to have been signed by both Defendants - it is unclear exactly who it is that suffers from this "medical condition".
In any event, can you please advise your clients of the Plaintiff's position concerning the mediation tomorrow, and also request that they communicate with us only via your firm."
Bateman Battersby, the solicitors for the defendants, replied by facsimile:
"We refer to our letter of the 17th March, 2015. We note that this matter is listed for Mediation on Thursday 19th March, 2015.
We understand that our clients have taken the unusual step of contacting the Registry directly advising that they seek to adjourn the Mediation date on the basis that Mr Samir Habashy has a medical certificate.
We wish to advise that we have been specifically instructed not to appear at the Mediation tomorrow. We have notified the Plaintiff's Solicitors, Sanford Legal. Therefore, bearing in mind our client's specific instructions we advise that we shall not be in a position to appear tomorrow. We apologise to the Court, however, we trust that in light of those instructions the Court will appreciate our position.
We also note that the matter is listed for a Direction Hearing on Friday 20th March, 2015 and further advise that we have been instructed to not appear on that occasion also."
The plaintiff and his solicitors nevertheless attended the mediation at the allotted hour on 19 March 2015. There was no appearance by the defendants or their solicitors. The Assistant Registrar conducting the mediation provided certain information to them, which was set out by Sanford Legal to Bateman Battersby in their letter of 19 March 2015 as follows:
"We refer to the above matter which was listed today for mediation.
We attended Court, with the Plaintiff, before the Assistant Registrar at 10.00am.
There was no appearance by you, nor by either of the Defendants.
The Registrar had not received, nor had he had any notice of:
1. Any application by the defendants to vacate the mediation because of medical issues;
2. Your letter dated 18 March 2015 advising that you were "not instructed to appear at the mediation"
Despite this, we provided the Registrar with the documents and material that had been provided to us going to these issues.
The Plaintiff was in a position to proceed with the mediation, even in your absence. However, with there being no appearance by either of the Defendants (and no evidence of any "medical condition" having been provided), the Registrar:
- Vacated the mediation; and
- Referred the matter to Judge Gibson (who was sitting at the time).
At 11.00am the writer appeared before Judge Gibson, as she was the judge who had previously dealt with the matter. Again, before Her Honour, there was no appearance by, or on behalf of the Defendants.
Her Honour voiced her concern about the fact that insufficient notice had been provided to either us, or the Court, of the non-appearance by the Defendants, and their representatives.
She then went on to make the following orders (which we were ordered to advise you of by 4.00pm. today):"
1. Vacate the return date of Friday 20 March 2015.
2. Note the non-appearance of the defendants and their legal representatives at today's mediation without prior notice having been given to the mediator or the court in sufficient time.
3. Reserve the costs of today and tomorrow.
4. Direct the defendants to file a defence in 14 days.
5. Direct the defendants to show cause why they should not pay the costs thrown away by reason of the late notice to the court and to the plaintiff of the vacating of the mediation date and the return date tomorrow including any application by the plaintiff for lump sum and/or indemnity costs to be payable forthwith, such evidence from the defendants is to include affidavits and/or medical certificates.
6. Direct the plaintiff to file and serve a comprehensive memorandum of costs in assessable form in the event a lump sum costs order is sought, together with an affidavit of a costs assessor setting out the reasonableness of the costs involved.
7. Matter stood over for further directions to Thursday 16 April 2015 at 9:30am.
8. Plaintiff to notify the defendants of these orders by 4:00pm today by email."
[2]
The proceedings on Thursday 16 April 2015
The solicitors acting for the defendants attended for the purpose of seeking leave to withdraw, on the basis that they propose to file a Notice of Ceasing to Act. The first defendant appeared in person and advised that the second defendant was overseas. I understand he will return at some time in the immediate future.
Mr Habashy has provided an affidavit which was filed on 15 April 2015. He states in his affidavit:
"On 18/3/2015, I was sick and I was not able to attend the court in [sic] that day concern [sic] health issues, [sic] Exhibit [sic] hereto and marked with letter (A)"
The medical certificate states:
"THIS IS TO CERTIFY THAT
Mr Samir Habashy
IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD
Wednesday, 18 March 2015 TO Wednesday, 25 March 2015 INCLUSIVE
He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION
This Certificate was completed on 18/3/2015.
[Signature]Dr Samir Elsokkary"
A copy of what purports to be a notification to the District Court is attached. It does not include an email for the District Court, or a fax number.
Whether or not the defendants did send a facsimile or email to the court, it was not received by the Registrar.
The first defendant advised me that he was the person suffering from the medical condition, and that it was a disc problem. Although he referred to the second defendant as being "overseas", I note that the second defendant signed these letters, as well as the first defendant, and that there is no suggestion that he was also too ill to attend.
[3]
Reasons for refusing a second order for mediation
Section 26(1) Civil Procedure Act 2005 (NSW) provides:
"(1) If it considers the circumstances appropriate, the court may, by order, refer any proceedings before it, or part of any such proceedings, for mediation by a mediator, and may do so either with or without the consent of the parties to the proceedings concerned."
The costs of mediation are substantial. The court has power under s 28 to make orders as to payment of costs by one or more of the parties in such manner as the court may consider appropriate, or, if the parties are able to agree amongst themselves, it is not necessary to make such an order (Mead v Allianz Australia Insurance Ltd [2007] NSWSC 500).
The high costs of defamation litigation, and the comparative rarity of insurance, has resulted in the practice of mediations being provided by the Registrars of this court without fee. This requires a great deal of preparation by the Registrars, and it is a vital part of case management in general and defamation case management in particular.
The circumstances in which the defendants gave either no or no adequate notice to the Registrar of their failure to attend the mediation are completely unacceptable. In relation to the first defendant, not only is there scant evidence of the medical condition in question, but he failed to respond to the options offered by the plaintiff for the mediation to go ahead in any event. In relation to the second defendant there is no excuse for his failure to attend a mediation which had been arranged as long ago as 22 December 2014.
At the time, the defendants were represented. It is regrettable that the solicitors for the defendants did not play a more active part in ensuring that the court was not inconvenience by the circumstances of the cancellation of the mediation at such a late stage.
The defendants now represent themselves. However, this does not entitle them to additional or special consideration in circumstances where they have shown a complete disregard for the considerable effort the District Court, and in particular the Registrar with the conduct of this mediation, have gone to in terms of preparation for the mediation.
I am satisfied, having regard to the obligations imposed upon me by s 26(1) Civil Procedure Act 2005 (NSW), that it is not appropriate for me to make a further referral of these proceedings to mediation. This court has done all it can. There can be no guarantee that the same last minute failure to attend would not occur on the next occasion. The first defendant's submissions to me, which consisted essentially of a demand for a further date for mediation, showed no insight into the inconvenience he had caused not only to his opponents but to the court by his failure to provide adequate notification of the proposed change of the date.
The free mediation service at the District Court is not intended to replace professional mediation provided by mediators who are paid fees. It is an adjunct to those services only. The District Court is a court with limited resources. Every effort is made to consider the needs of all litigants, and not merely litigants in person. The mediation resources of this court are of valuable case management tool, and parties who do not show appreciation of its benefits should not expect to be able to seek the indulgence of a further mediation date.
Additionally, the plaintiff and his legal representatives have done all they could to bring about a mediated resolution. They held an informal settlement conference prior to the court mediation, and they attended the mediation despite the last-minute correspondence. It is as well that they did so, or the Assistant Registrar would not have known what had happened.
The plaintiff opposes any further referrals to mediation, on the basis that further attempts are unlikely, given this history, to be productive. Accordingly, I have made orders for a timetable which include the filing of a defence. That timetable was made in the absence of the first defendant as he did not remain in the court to participate in the setting of a timetable.
[4]
Orders
1. Grant leave to the solicitors for the defendants to withdraw on the basis that they will file a Notice of Ceasing to Act.
2. Grant leave to the plaintiff to rely on the Affidavit of Simon Maxwell of 15 April 2015, and note the contents of the affidavit of Mr Samir Habashy of 15 April 2015.
3. The first defendant's application for a second mediation date following the failure to attend the first mediation date by both defendants is refused.
4. Note the first defendant appeared at 9:30am with Mr Hagen, but has left the court precinct after a short adjournment. The first defendant was called three times outside Court 13D at 10:40am - no appearance. Second defendant does not appear; first defendant advises the second defendant is overseas.
5. Direct the defendants to file their Defence in 21 days.
6. Defer the costs issues raised in my orders of 19 March 2015 until further order.
7. Matter stood over for further directions to Thursday 14 May 2015 at 9:30am.
8. Costs of today are reserved.
9. Plaintiff to notify the defendants of the orders and that if they do not attend on the next occasion orders will be made in their absence.
[5]
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Decision last updated: 06 August 2015