Abela v State of Victoria
[2011] FCA 1323
•14 November 2011
FEDERAL COURT OF AUSTRALIA
Abela v State of Victoria [2011] FCA 1323
Citation: Abela v State of Victoria [2011] FCA 1323 Parties: BEAU ABELA v STATE OF VICTORIA, DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT File numbers: VID 405 of 2011
VID 1102 of 2011Judges: TRACEY J Date of judgment: 14 November 2011 Legislation: Disability Discrimination Act 1992 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 37M, 37NCases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Re Australian Education Union, Ex parte Victoria (1995) 184 CLR 188 referred toDate of hearing: 14 November 2011 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 32 Counsel for the Applicant: Mr P G Nash QC and Mr D Hancock Solicitor for the Applicant: Access Law Counsel for the Respondent: Mr J Bourke SC and Ms R Sweet Solicitor for the Respondent: Minter Ellison
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 405 of 2011
BETWEEN: BEAU ABELA
ApplicantAND: STATE OF VICTORIA, DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
14 NOVEMBER 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The applicant’s interlocutory application for an adjournment dated 4 November 2011 be refused.
2.The applicant pay the respondent’s costs of the interlocutory hearing.
AND THE COURT DIRECTS THAT:
3.On or before 24 November 2011 each party file and serve a list of witnesses in the order in which they propose to call them.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1102 of 2011
BETWEEN: BEAU ABELA
ApplicantAND: STATE OF VICTORIA, DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT
Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
14 NOVEMBER 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The applicant’s interlocutory application for an adjournment dated 4 November 2011 be refused.
2.The applicant pay the respondent’s costs of the interlocutory hearing.
AND THE COURT DIRECTS THAT:
3.On or before 24 November 2011 each party file and serve a list of witnesses in the order in which they propose to call them.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 405 of 2011
VID 1102 of 2011
BETWEEN: BEAU ABELA
ApplicantAND: STATE OF VICTORIA, DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT
Respondent
JUDGE:
TRACEY J
DATE:
14 NOVEMBER 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This proceeding is fixed for trial to commence on 28 November 2011 on an estimate of three weeks.
By interlocutory application dated 4 November 2011 the applicant seeks an adjournment of the trial to a date to be fixed. I was advised by counsel appearing pro bono for the applicant this morning that that adjournment is sought until either February or March 2012, and that the trial is now estimated to take approximately four weeks.
The solicitor acting for the applicant has sworn an affidavit in support of the application which seeks an adjournment, principally on the basis that a constitutional issue will fall to be determined in the trial and that that same issue has arisen in a recent trial in this Court which is being heard by Marshall J, and in which his Honour has reserved judgment. He is considering the constitutional issue which has been raised by way of written submissions filed after the trial had concluded.
The urgency which the Court had been advised earlier in the year necessitated a speedy trial had passed because the applicant has now turned 18 years of age and is no longer attending any school conducted by the respondent, and has no intention of returning to any such school.
Counsel appearing for the applicant this morning advised the Court that there are presently no counsel briefed for the trial which is due to start in two weeks. No explanation was provided on affidavit or otherwise as to why that is the case, given that this matter has been listed for trial for some five months.
It is necessary to say something about the history of this matter. It was commenced in this Court as proceeding VID 558 in 2008. A statement of claim and a defence were filed in the latter part of 2008 and once that point had been reached the proceeding was transferred from this Court to the Federal Magistrates Court.
The matter eventually came on for trial in the Federal Magistrates Court on 2 May 2011. The trial had been listed to take three weeks.
On the first day of the hearing the respondent sought and obtained leave to file certain affidavits in reply. The applicant insisted on a need to file answering affidavits and the consequence was that the trial dates were lost.
Once this inevitability became clear, the applicant applied for the matter to be restored to the lists of this Court with a view to the matter being heard more speedily than was possible in the Federal Magistrates Court.
The Federal Magistrate transferred the matter to this Court and, on 3 June 2011, the fixture for trial on 28 November 2011 on an estimate of three weeks was made. When listing the trial, the Court was moved in part by the applicant’s plea of urgency.
The issues raised by the application involve consideration of events going back some 13 years. Serious allegations are made of contraventions of the Disability Discrimination Act1992 (Cth) (“the Act”) by individual teachers and senior administrative staff at a variety of schools in this State and there is also an allegation of victimisation, which constitutes an offence under the Act.
The respondent opposes the application on a number of grounds.
The first is that the witnesses to be called on behalf of the respondent were ready to appear at the trial in the Federal Magistrates Court in May and were subjected to the stresses that normally attend attendance in Court and also the disruption to their normal programmes.
Many of them are still teachers in the education system in this State and have significant responsibilities that are not easily laid to one side.
It is submitted that it would be grossly unfair to them, having been placed on notice that they will be required to attend this Court in the three week period following 28 November, now to be told yet again that they will not be called in that period and will be required at some undetermined period in the course of next year. There is also the issue of them having set aside time in their busy schedules in order to make themselves available with the resulting disruption of the school programmes. There is a concern that arrangements that have been necessary to accommodate their appearance at trial will be set at nought.
The respondent also submits that the constitutional issue, which turns on the application of the High Court’s decision in Re Australian Education Union, Ex parte Victoria (1995) 184 CLR 188, gives rise to particular points in a factual context which differs from the proceeding which is presently being dealt with by Marshall J. It is possible that his Honour may not need, in that case, to resolve the point. Even if he does so the resolution of it may have no bearing on the present case given its different facts.
I am required in exercising the Court’s discretion on an application such as the present to have regard to the provisions of ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”).
Section 37M identifies the overarching purpose of the civil practice and procedure provisions of the FCA Act as being the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
By subsection (2) the overarching purpose includes the following objectives: the just determination of all proceedings before the Court; the efficient use of the judicial and administrative resources available for the purposes of the Court; the efficient disposal of the Court’s overall case load; the disposal of all proceedings in a timely manner, and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
Section 37N imposes an obligation on parties in civil proceedings to conduct the proceeding in a way that is consistent with the overarching purpose prescribed by s 37M.
I also take into account the principles of case management expounded in the decision of the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, and, in particular, at 192, 214 and 216-7.
The principles that emerge from the FCA Act and Aon involve a balancing of competing considerations. In my view the weight of evidence in this application tells overwhelmingly against the granting of a further adjournment of this trial.
There are only two points raised, as I have indicated, in support of the application.
The first is that there is a constitutional issue to be determined that may be common with that in the other case being considered by Marshall J. There is a different factual context in the present case such that, even if his Honour is called on (and it is by no means certain that he will be) to deal with the constitutional issue, his decision in that regard may have no material relevance to the issues which I will need to resolve.
The other ground that I have already mentioned is that the applicant has now turned 18 and has left the school system and has no intention of returning to it.
The matter commenced trial in the Federal Magistrates Court on 2 May this year. It may fairly be assumed that, but for the application by the respondent to file additional affidavit material, the trial would have proceeded.
The applicant was ready for trial and wanted the trial to go on. The trial would have proceeded but for the applicant’s insistence that he have the opportunity of filing further affidavits before dealing with evidence.
The applicant asked that the matter be sent to this Court in order that it be speedily dealt with. This Court made considerable efforts to ensure that it could be fixed in a busy schedule before the end of this year.
The additional affidavit material and answering material from the applicant which delayed the hearing in the Federal Magistrates Court has been filed in the intervening period. There is, therefore, no convincing explanation of why the matter cannot proceed, as the applicant wanted, on 28 November 2011.
It is very unfortunate that two weeks ahead of trial counsel have not been briefed, but there is no explanation as to the circumstances in which that position has come about. The trial date, as I have already indicated, has been fixed for almost six months.
The proceeding has been in the Court’s list for over three years. It is overdue for hearing. The respondent’s witnesses have been asked to make themselves available for the second time this year. They have done so at some inconvenience to their busy professional lives and been exposed, yet again, to the stresses of giving evidence in a trial. They should not be taxed further. An alternative listing in February or March will not be possible if the application is granted.
For those reasons the application for an adjournment is refused.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 14 November 2011
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