Adamczak v Alsco Pty Ltd

[2017] FCCA 3350

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADAMCZAK v ALSCO PTY LTD [2017] FCCA 3350

Catchwords:
INDUSTRIAL LAW – Application to adjourn trial – application made shortly prior to trial – matter adjourned previously – interstate and overseas witnesses applicant wishes to instruct different counsel and potentially change nature of application – balance of prejudice –interests of justice – public resources – whether appropriate to make such an order – application refused.

Cases cited:
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

Applicant: GEORGE ADAMCZAK

First Respondent:  ALSCO PTY LTD

File Number: ADG 379 of 2014

Judgment of: Judge Brown

Hearing date: 14 December 2017

Date of Last Submission: 14 December 2017

Delivered at: Adelaide

Delivered on: 14 December 2017

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Ms Stewart

Solicitors for the First Respondent: Alsco Pty Ltd

ORDERS

1. The application for an adjournment of the trial commencing on 19 December 2017 is dismissed.

2. The applicant pay the respondent’s costs fixed in the sum of $735.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 379 of 2014

GEORGE ADAMCZAK

Applicant

And

ALSCO PTY LTD

First Respondent

REASONS FOR JUDGMENT

1. This afternoon I have to deal with an application, which has been brought personally by George Adamczak, in respect of the adjournment of his application against Alsco Proprietary Limited.

2. The trial of Mr Adamczak’s application has been listed for final hearing before me on 19 December.  At this stage, three days have been set aside for the hearing of the matter with the possibility of it going into a fourth day on 22 December, which, of course, is the last day before the country, as a whole, goes into the Christmas break. 

3. Mr Adamczak’s action is one which is brought under the provisions of the Fair Work Act. In general terms, it is his position that he was employed by Alsco between 2009 until mid-2014. It is his case that when he brought matters to the attention of the management team at Alsco, in its Adelaide premises, regarding occupational health and safety, as he was entitled to do, he was subjected to bullying and harassment and, ultimately, was the object of adverse action by Alsco in that his employment was terminated.

4. In early October 2014, Mr Adamczak’s then lawyer, Mr Johns of HW Ebsworth, commenced these proceedings.  They were referred to mediation at an early stage, which did not resolve the matter. 

5. There is an emphasis, in this Court, on the exploration of alternative dispute resolution at an early stage in proceedings.  The Federal Circuit Court is a first instance Court.  It is a fairly busy Court and one of its raison d’être is to provide quick and comparatively cheap access to justice. 

6. Against that background, the case was fixed for trial fairly early on, on 15, 16, 17 and 18 March 2016.  It being routinely the cases are fixed quickly for hearing and the rules of the Court are relatively flexible in terms of how actions are brought, whether by statements of claim and pleadings or through the filing of affidavits.  Again, the rationale being that the Court determines what is the most cost efficient way of dealing with disputes, including disputes regarding workplace matters.

7. Those advising Mr Adamczak early on elected to personally name the members of Alsco’s management team and so potentially leave those individuals open to being personally penalised by way of civil penalties, if it was ultimately found that they had contravened provisions of the Act relating to general protection.  For obvious reasons, that decision created a great deal of controversy.  The trial did not proceed in 2016, one of the issues being whether the individual should remain as parties.

8. In addition, at that stage, Alsco was being represented, as I recall, by its in-house counsel and there was controversy from his point of view as to indications from the solicitor then representing Mr Adamczak as to the number of witnesses, who were going to be called for the trial, which had the potential to make it a much longer trial, as I recall.

9. In any event, the March 2016 trial did not go ahead and Mr Adamczak, as he was entitled to do, changed his solicitors and retained Mr Starke to be his solicitor.  However, his counsel, Mr Manuel, continued to act and, indeed, Mr Manuel was involved in the matter for much of its course.

10. In March, the issues relating to the joinder of the various members of the management team were resolved and Mr Manuel made the concession that they could be discharged from the proceedings.  That was an issue which I did not have to adjudicate.  Again, as I recall, other concessions were made about who would be witnesses in the proceedings. 

11. Against that background, the matter was refixed for a further five days in October 2016.  The delay between March and October was indicative of the delays and time pressures in the Court’s business at that time that there was a delay of about seven months.  I suspect, but I cannot recall now, that efforts were made to reaccommodate the hearing because of the lost hearing in March 2016 and also because the matters about which Mr Adamczak complains occurred primarily in March 2014.  So, at that stage, a period of about two and a half years ago. 

12. The October 2016 trial did not go ahead.  The reason for that is not attributable to any omission on the part of either Mr Adamczak or anyone associated with Alsco. 

13. Mr Manuel, who had been retained by Mr Starke for the trial, fell very seriously ill.  As I recall, he was in intensive care and had, I think it was, a very serious liver or kidney complaint.  There was no doubt that he was unwell and those representing Alsco conceded that the trial could not go ahead.  

14. Again, it was refixed.  At that stage, dates were available in August 2017.  The delay, at that stage, was one of about 10 months, a little longer than the delay earlier.  Again, the trial of August 2017 did not eventuate and, again, that was not attributable to any delay relating to Mr Adamczak. 

15. Unfortunately, Mr Manuel’s mother died on either the Saturday or the Sunday before the Monday the trial was scheduled to begin.  At that stage, Alsco had briefed Mr Moses of senior counsel and Ms Stewart as his junior.

16. Mr Manuel did not wish to abandon Mr Adamczak, but it came to my attention that his mother had died.  Mr Manuel was, for understandable reasons, upset.  There was an issue about whether he could have some time from the trial to attend his mother’s funeral.  Arrangements were being made for his mother’s funeral. 

17. With the acquiescence of Mr Moses and Ms Stewart, I met with Mr Manuel and Mr Moses and Ms Stewart in my private chambers to discuss the issue.  It was my view that it was not appropriate for the trial to continue and the view I took, which Mr Moses supported, was that, in all common decency, the trial could not go ahead. 

18. It was therefore adjourned and, in those circumstances, efforts were made to bring the matter back as soon as it could, because, from both Mr Adamczak’s perspective and the perspective of the individual management team at Alsco, the issues raised really needed to be resolved. 

19. Mr Moses is, as I indicated earlier to Mr Adamczak in discussions I had with him, close to the pinnacle of his profession.  I mean no disrespect to Ms Stewart.  As with barristers in his position, there are many demands on his time and the matter was refixed in the week prior to Christmas.  The delay was one of about three and a bit months, perhaps a little bit more, which were significantly less than the earlier delays. 

20. The reason that the delay could be shorter was that, as I have indicated to Mr Adamczak and Ms Stewart this afternoon, I had free time that week, which I have put aside, unencumbered by trials to deal with other aspects of my work dealing with families in the period leading up to Christmas time, which is frequently an unhappy one for separated families.  Although, of course, the season is one when brotherly love is supposed to be prevalent.

21. On 27 November 2017, Mr Starke filed an application on Mr Adamczak’s behalf.  The application was to vacate the hearing of 19 December and list the matter for hearing in late January for directions.  The application was supported by an affidavit filed by Mr Adamczak himself.  He deposed as follows:

    I am concerned that health issues of my counsel will impact the presentation of my case on 19 December that has already been adjourned, firstly, because of my counsel’s health and then the unfortunate death of my counsel’s mother.  I propose instructing alternate counsel and time will be required for new counsel to become familiar with my case and prepare the presentation of my case.

22. The application was filed, as I say, on 27 November 2017.  Clearly, it had to be listed urgently and, indeed, Mr Starke applied for the matter to be listed urgently and it was listed two days later on 29 November 2017.  Arrangements were made for Ms Stewart to appear.  The matter was originally listed at quarter past 2 on 29 November.  As I recall, Mr Starke was running late.  He told me, when he arrived after attempts had been made to contact him, that there had been issues with his internet in his office – or something of that kind.  He had not informed Mr Adamczak of the time of the application.  That, of course, was nothing to do with the Court, which had done what it had been asked to do, which was list the application urgently.

23. I appreciate that the application was of some moment to Mr Adamczak personally.  In any event, the view I took at the time, given that the adjournment application was vehemently opposed by Alsco, was not to grant the adjournment because of the potential prejudice to Alsco.

24. An affidavit had been filed to that effect by Ms Slobaku, who is the solicitor instructed to prepare the matter on behalf of Alsco, in which she had deposed that three witnesses had been organised to attend Court in Adelaide from Sydney, a witness who resides in Singapore arrangements had been made for her to fly from Singapore to Sydney and then to Adelaide and arrangements had been made for her to attend Court with Mr Moses.  Of course, Mr Moses is a member of the New South Wales Bar.  Accordingly, Alsco opposed the adjournment.  

25. At that stage, it was, on my calculations, about three or four weeks before the date scheduled for the trial.  The view I took, in which I indicated to Mr Starke and Ms Stewart, was that there were very many other counsel, apart from Mr Manuel, who could be instructed to get the case up in the time available. 

26. Although it was a very significant matter to Mr Adamczak, personally, it was not a case of such complexity that a competent counsel could not do it justice, in terms of preparation over a period of three to four weeks.  In my view, there were many such counsel, not only in Adelaide but also throughout Australia generally.  On that basis, the application for an adjournment was refused.

27. Mr Starke made application for me to rehear the application for an adjournment so that Mr Adamczak could hear the result and, with the greatest respect to Mr Starke, I did not think that was appropriate, given that the Court, as I say, had done what was required of it in listing the matter urgently and I did not think it was appropriate that I, in effect, provide the reasons directly to Mr Adamczak, it being open, theoretically, for Mr Starke to get a transcript of what I had said and for Mr Adamczak to read it.

28. The next thing that has occurred is that on 13 December Mr Adamczak has filed his own application.  On the same day Mr Starke has filed a notice of withdrawal as solicitor, which was provided to Mr Adamczak at his home in suburban Adelaide.  He indicated that his notice of intention had been served seven days earlier. 

29. Mr Adamczak has deposed as follows:

    I have been informed by Mr Starke and I verily believe to be true that the counsel retained by him to represent me at the forthcoming trial, Mr Rick Manuel, has also decided to cease representing me in these proceedings.  I understand, from discussion with Mr Starke, that he considers that there has been a breakdown in the requisite trust and confidence, as between solicitor and client, for him to continue to represent me and I too no longer have the trust and confidence in either Mr Starke or Mr Manuel to properly represent me in these proceedings at trial.

30. Accordingly, Mr Adamczak has made another application to adjourn the proceedings that that application was listed urgently at quarter past 2 today and it is now 20 to 4 and I have taken some time, I hope, to unpack, as carefully as I can, the various issues which relate to this matter. 

31. It is Mr Adamczak’s position that it is, essentially, impossible for him to represent himself in these proceedings, particularly if he is opposed by Mr Moses and Ms Stewart.  He is not legally qualified.  In addition, it is his position that for a number of years he has been suffering from anxiety and depression and has been prescribed an antidepressant medication.  He is concerned that because of his anxiety and depression, he is further disadvantaged.

32. He has approached another solicitor in Adelaide who is, in theoretical terms, available to represent him, but cannot before 19 December.  Mr Adamczak has been very candid with me in discussions that I have had with him.  Mr Adamczak, as I understand it, has funded the proceedings to date and they represent a significant investment on his behalf.  It is also his case, I think, that he has had, from time to time, some disagreements with those advising him as to forensic decisions about the matter. 

33. He says that although he disagreed with some of those decisions, if Mr Manuel had not withdrawn, he would have gone with him but it is Mr Manuel, in effect, and Mr Starke, in effect, who have dropped him rather than vice versa.  Therefore, it is, I think, essentially his case that no fault attaches to him personally.

34. At this stage, I have had no evidence from either Mr Starke or Mr Manuel to rebut that assertion and, as I remarked to Mr Adamczak myself, his affidavit indicates a degree of mutuality in terms of the loss of trust and confidence between lawyer and legal team.  In effect, it is my view that that loss of trust and confidence cuts both ways. 

35. Ms Stewart points to the fact that due to no fault of her client, the case has been significantly delayed and she is critical that it is only in the days immediately prior to the trial that the difficulties between client and counsel have crystallised.  It is her submission, with which I agree, that these issues could have been talked out or resolved at a much earlier stage.  It is against that background, I think, that I must determine this difficult issue. 

36. I accept that, on any view, Mr Adamczak must be at a significant disadvantage in presenting his own case.  He is not legally qualified, whereas, on the other hand, both Mr Moses and Ms Stewart are highly skilled.  They also have the advantage of being emotionally disconnected from these proceedings.  They have no emotional investment in the matter, whereas, for obvious reasons, Mr Adamczak does. 

37. I also accept that Mr Adamczak is not likely to be an emotionally robust person.  The only mechanisms I have for assessing Mr Adamczak in this regard are highly subjective and personal ones.  I have spoken to Mr Adamczak in the courtroom – he has been articulate, he has been polite, he has been pleasant to me and, as I said earlier, he has been candid.  But I do not know how he is coping underneath that and, at this stage, I have very little evidence as to what his state of mind is, particularly whether, in a professional or in a psychiatric way, he can deal with three or four days of legal process. 

38. There is a trite but no less true legal saying that justice delayed is justice denied.  In this case, the matter has been listed for hearing on three previous occasions.  The events, of which Mr Adamczak complains, occurred over three years ago.  Arrangements have been put in place for some time for this trial.  I have to think of the interests not only of Mr Adamczak, but also of the respondent and its witnesses. 

39. I must also bear in mind what was said by the former Chief Justice of the High Court, French CJ in Aon Risk Services Australia Limited v Australian National University[1].  His Honour said this:

    “The adversarial system has been qualified by changing practices in the Courts directed to the reduction of costs and delay and the realisation that the Courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.”

    [1]  Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

40. In this case, an outsider, perhaps, looking at the history of the matter would be critical that this case does not demonstrate a proper and efficient use of public resources.  It has been on foot for over three years.  It has been fixed for three previous hearing.  I think any objective observer would be critical of that.

41. One of the things I have to consider is whether Mr Adamczak, if I adjourn the proceedings, is likely to be in a significantly different position to the one in which he finds himself now.  At this stage, I am not persuaded that necessarily he will be.  The major, I think, is that forensic decisions have been made by his previous legal representatives as to how the trial is to be conducted. 

42. If the proceedings are adjourned, Mr Adamczak may elect to revisit those forensic decisions that, in turn, may have implications for the length of the trial.  Whether Mr Adamczak will be able to fund them is unknown to me.  Chiefly, it is only a matter of days before the trial is scheduled to begin.  Alsco has made arrangements for its witnesses, it has retained counsel. 

43. In my view, it would be unfair to adjourn the proceedings yet again and, notwithstanding the natural sympathy I feel for Mr Adamczak, given his lack of legal qualifications and his personal infirmities, I am of the view that the matter really needs to proceed.  It has been going on for a very long time.

44. For those reasons, the application for adjournment is refused.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     3 May 2018