Jamal Amgad v Stephen William Cairns [2022] NSWCA 239

Jamal Amgad v Stephen William Cairns [2022] NSWCA 239

The notice of motion was dismissed because the Court was not satisfied that vacating the hearing would put the applicant in any better position: there was no realistic prospect of obtaining legal assistance, no evidence that his condition would improve within the suggested period, and no realistic possibility that someone would consent to act as tutor given potential costs exposure and the earlier assessment of the proposed appeal. If the applicant was competent there was no reason to vacate the hearing, and if he was not competent an indeterminate stay to find a tutor would likely increase costs. Having regard to ss 56 to 58 of the Civil Procedure Act 2005 (NSW), the better course was...

Jurisdiction
Australia
Judgment Date
21 November 2022
Procedural Posture
Notice of Motion in Summons Seeking Leave to Appeal / Application to Vacate the Hearing Date for the Leave Application
Outcome
Application dismissed with no order as to costs
Legal Topics
['vacating Hearing Date' 'self Represented Litigant' 'pro Bono Legal Assistance' 'legal Aid' 'tutor' 'person Under Legal Incapacity']
['civil Procedure' 'appeals' 'legal Capacity'] ['vacating Hearing Date' 'self Represented Litigant' 'pro Bono Legal Assistance' 'legal Aid' 'tutor' 'person Under Legal Incapacity']

Case Brief

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Procedural Posture

Notice of Motion in Summons Seeking Leave to Appeal / Application to Vacate the Hearing Date for the Leave Application

Legal Issues

  1. 1 ["Whether the hearing date for the applicant's summons seeking leave to appeal should be vacated until he can find legal representation." "Whether the applicant's evidence about mental health raised a question of legal incapacity requiring a tutor or stay of the proceedings." 'Whether, having regard to the prospects of legal assistance or a tutor and the requirements of the Civil Procedure Act 2005 (NSW), the matter should proceed on the listed hearing date.']

Ratio Decidendi

The notice of motion was dismissed because the Court was not satisfied that vacating the hearing would put the applicant in any better position: there was no realistic prospect of obtaining legal assistance, no evidence that his condition would improve within the suggested period, and no realistic possibility that someone would consent to act as tutor given potential costs exposure and the earlier assessment of the proposed appeal. If the applicant was competent there was no reason to vacate the hearing, and if he was not competent an indeterminate stay to find a tutor would likely increase costs. Having regard to ss 56 to 58 of the Civil Procedure Act 2005 (NSW), the better course was...

Court Disposition

Application dismissed with no order as to costs

Orders

  • ['The notice of motion filed 7 November 2022 is dismissed.' 'No order as to the costs of that motion.']