Auguste v Nikolyn Pty Ltd
[2013] FCCA 1630
•11 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUGUSTE v NIKOLYN PTY LTD & ANOR | [2013] FCCA 1630 |
| Catchwords: PRACTICE & PROCEDURE – Application for an adjournment – principles – administration of justice – interests of justice – objects of the legislation. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth) ss.3 and 42 Federal Circuit Court Rules 2001 (Cth) r.1.03 |
| Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Cann vCommonwealth Bank of Australia (No. 5) [2011] FMCA 768 |
| Applicant: | ROBERT STEPHEN AUGUSTE |
| First Respondent: | NIKOLYN PTY LTD ACN 078 833 977 |
| Second Respondent: | DONATO COLASANTE |
| File Number: | PEG 324 of 2011 |
| Judgment of: | Judge Lucev |
| Hearing date: | 11 October 2013 |
| Date of Last Submission: | 11 October 2013 |
| Delivered at: | Perth |
| Delivered on: | 11 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P G Clifford |
| Solicitors for the Applicant: | Alan Rumsley |
| Counsel for the Respondents: | Ms N Breach |
| Solicitors for the Respondents: | D’Angelo Legal |
ORDERS
The first and second respondents’ oral interim application to adjourn the hearing listed to commence on 28 October 2013 is dismissed.
Orders (3)-(8) of the Court’s Orders made 15 May 2013 be set aside.
Except in the situation were evidence has already been filed in affidavit form, evidence be taken orally at the hearing listed to commence on 28 October 2013.
The first and second respondents pay the applicant’s costs of the first and second respondents’ oral interim application to adjourn the hearing listed on 28 October 2013 in the sum of $997.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 324 of 2011
| ROBERT STEPHEN AUGUSTE |
Applicant
And
| NIKOLYN PTY LTD ACN 078 833 977 |
First Respondent
| DONATO COLASANTE |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore reasons – edited from transcript)
Introduction
The issue before the Court relates to what the Court has been taken to be an oral application by the respondents for the adjournment of the hearing of this matter which is listed for 4 days commencing on 28 October 2013. That is in 17 days’ time. It is appropriate in the circumstances to deal with the history of the matter to this point in time.
Litigation history
The matter was first the subject of Court orders on 2 December 2011, and on that occasion, orders were made which would have seen the pleadings concluded by 20 January 2012, the matter referred to mediation and otherwise for a further directions hearing on 14 May 2012. A mediation was subsequently conducted and the pleadings largely completed. The mediation was adjourned to a later date.
There was a further directions hearing on 14 May 2012, but that resulted in the directions hearing being adjourned to a later date, and there was subsequently another three directions hearings with the matter being adjourned to a further later date. On 23 July 2012, the matter came back on for a directions once again, and on that date, the Court made orders for the filing of a Scott schedule and defence to cross-claim by the applicant by 28 August 2012, for the filing of affidavits, objections and submissions, and for the matter to be listed for 4 days hearing on 12, 13, 14 and 15 March 2013.
It suffices to observe that there was no compliance by any party with any of the orders with respect to the matter as ordered on 23 July 2012, but it was the applicant who was obliged to serve a Scott schedule and defence to cross-claim and affidavits first, which did not occur.
On 18 February 2013, the respondents filed an application in a case seeking to strike out the applicant’s claim as a whole, and for judgment to be entered against the applicant for the first respondent’s cross-claim and for costs. That application was supported by an affidavit sworn by the second respondent, who is also a director of the first respondent, Mr Donato Colasante (“Mr Colasante”). It is unnecessary to go to the content of that affidavit.
On 21 February 2013, the applicant’s defence to the respondents’ counter-claim was filed, and the matter came back on before the Court on 5 March 2013, at which time, by consent, previous orders, including the order for a 4 day trial commencing 12 March 2013, were vacated, and there were orders for a further mediation and for a further directions hearing on 22 March 2013.
It suffices to observe that subsequently there was another directions hearing, further mediation, which was unsuccessful, and that on 15 May 2013 the Court made orders by consent in similar terms to those which had been made previously, save for the dates, obviously, for the filing of affidavits, objections to affidavits, an outline of submissions and listing the matter for a 4 day hearing at a date to be fixed after 24 October 2013. On 21 June 2013, a notice of listing was sent to the parties listing the matter for 4 days commencing 28 October 2013.
The applicant filed on 16 July 2013, some 19 days late, affidavit evidence in accordance with order (2) of the orders made on 15 May 2013. There has been no compliance with orders (3) to (7) of the orders of 15 May 2013. Order (3), which is the first of those orders, and upon which the other orders are effectively consequential, provides for the respondents to file and serve any affidavits they propose to rely on at trial in opposition to the applicant’s application and in support of the respondents’ cross-claim by 8 August 2013. Even allowing for the lateness of the filing of the applicant’s affidavits, the respondents’ affidavits are well out of time and have not been filed as at the date of the making of this application for adjournment by the respondents.
The net result is that there has been no compliance with orders (3) to (7) of the orders of 15 May 2013, and the matter is 17 days away from a 4 day trial which was otherwise dependent upon those orders being complied with. As the Court has already observed, this matter has already been the subject of one adjournment of a 4 day trial listed for March 2013, and is now the subject of a second adjournment application to adjourn a 4 day hearing less than 3 weeks away.
The adjournment application and Mr Colasante’s affidavit
The adjournment application that is pressed today by the respondents has been supported by the affidavit of Mr Colasante, to be filed by the respondents’ solicitors in the Registry following this hearing, but a copy of which has been provided to the Court and to the applicant’s solicitors. Mr Colasante’s affidavit, sworn today, sets out the history of this matter up to 15 May 2013 in not dissimilar terms to that which the Court has already adverted to.
Mr Colasante then goes on to deal with, at paragraphs 14 to 30 of his affidavit, the requirement to file and serve the respondent’s affidavit material and the circumstances in which that has not been done, and goes on to object to any suggestion that the trial might proceed and that the respondent’s counter-claim be heard separately. Paragraphs 14 to 30 read as follows:
14.The Applicant was required to file and serve his affidavit material by 27 June 2013.
15.Shortly after that date my solicitors informed me that the affidavit material had not been filed with the Court and that they had not been served with any affidavit material by the Applicant.
16I was informed by my solicitors that the Applicant had been unwell which had caused delays. I agreed that the Respondents would accept the late filing of the Applicant’s evidence.
17.Between 12 and 16 July 2013 my solicitors forwarded to me scanned copies of the Applicants affidavit evidence and the affidavit evidence of Mr Tony Shaw.
18.From that point forward I have met with my solicitors and counsel regarding the evidence of the Respondents.
19.I have had ill health since February 2008 with Laryngeal carcinoma and a tracheotomy requiring medications and ongoing treatment.
20.I have had difficulty in providing instructions due to my health condition. I find that I have difficulty providing more complex instructions and often have to stop and rest.
21.Many mornings I will have coughing fits over several hours resulting in me vomiting and remaining unable to work or do much for most of the day.
22.I have had to cancel work and legal appointments due to this sometimes with little notice.
23.I have difficulty concentrating for even a moderate period of time.
24.I was aware that the time for filing of the Respondents evidence was six weeks after the filing of the Applicant’s evidence.
25.Despite my best endeavours, I simply have not been in good enough health to be able to fully prepare my affidavit evidence due to the large volume of material, its complexity and my ability to provide my instructions being affected by ill health.
26.I have not been fit to adequately prepare the Respondent’s defence and counterclaim for several months.
27.On 8 October 2013 I visited my treating General Practitioner Dr Gary Spurge and explained to him the difficulties I had been having over the past several months in breathing, coughing and concentrating for more than a moderate amount of time. I made him aware of the impending trial of the Applicant and counterclaim.
Annexed hereto and marked DC 6 is a medical certificate dated 8 October 2013.
28.I regret that I have not been well enough to be able to complete my evidence.
29.I have been advised that the Applicant may seek to have his claim and the Respondent’s counterclaim heard separately.
30.I strongly object to that happening in order to refute the applicants claim a court must hear evidence of the work the subject of the counterclaim.
The application for adjournment is pressed, in large part, on the basis of medical evidence and Mr Colasante’s assertions that his health has not been good enough to enable him to fully prepare his affidavit. Reliance is placed on annexure DCC6, it being a less than one-page note of a certification of an examination of Mr Colasante by his suburban general practitioner. The medical evidence is remarkably uninformative. It is apparent that Mr Colasante does have cancer and that he has had a tracheotomy. He has had cancer since 2008 and had the tracheotomy in November 2011, but otherwise the medical certificate simply indicates that he is partially fit for work from 8 October 2013 and has a limited ability to concentrate on complex tasks.
Consideration
The Court accepts that Mr Colasante is ill, and that that illness is ongoing, and certainly it would appear, in some respects, to be debilitating. However, the Court also observes that when it has been in the interests of the respondents, there appears to have been no difficulty in Mr Colasante swearing affidavits in these proceedings, as he has done on 18 February 2013 in support of an application in a case to strike out the proceedings, and as he has done today in support of the adjournment application on the basis of a doctor’s attendance but 3 days ago.
The Court also makes the observation that it has been more than 15 months since affidavits were ordered to be filed by the Court for the first time. The respondents have known for 15 months that it will be necessary to have affidavit evidence prepared for this trial and it has been the subject of two orders some time apart by the Court. There is no evidence of anything being done by either the respondents or the solicitors during that time to facilitate preparation of the affidavits. There is some indication there has been some work done but no detail of what has been done.
In the circumstances, and particularly in circumstances where Mr Colasante has filed affidavits in support of applications pressed by the respondent, the Court would have expected there to be some explanation as to why over a period of 15 months the trial affidavit of Mr Colasante has not been prepared. The Court assumes for present purposes that there will only be one affidavit on behalf of the respondents, as there is no indication that any other affidavits are intended to be filed.
In considering whether to exercise its discretion to grant an adjournment, this Court is obliged to have regard to the interests of justice, the administration of justice, and a balance between those considerations and case management considerations. The Court refers generally to Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 and the application of the principles in that judgment by this Court in a number of cases, including Cann vCommonwealth Bank of Australia (No. 5) [2011] FMCA 768. Sections 3 and 42 of the Federal Circuit Court of Australia Act1999 (Cth) and r.1.03 of the Federal CircuitCourtRules 2001 (Cth) (“FCC Rules”) oblige this Court, as a federal trial court of first instance to act with expedition in the disposition of matters before it. Indeed, the Court is obliged to, whilst operating as informally as possible to use streamline processes, also act as speedily as possible in the resolution of matters.
The Court notes that this is a matter which has been on foot for close to two years, which has been by consent of the parties adjourned numerous times, has been to mediation twice, and has now been listed twice for four-day hearings. There simply comes a time in the course of litigation, particularly in a first-instance court of this type, and having regard to the objects of the relevant legislation, that matters must be brought to hearing.
It is simply not, in the Court’s view, in the public interest that this matter now be adjourned for a second time so shortly before the hearing, particularly in circumstances where the respondent has had in excess of 15 months to prepare what appears to be a single affidavit for trial and there is no explanation as to what steps have, in fact, been taken to prepare the affidavit concerned; or, bearing in mind the circumstances in which Mr Colasante undoubtedly finds himself, why additional care has not been taken with respect to ensuring that the affidavit has been prepared within what is, in any event, a lengthy period of time.
The Court notes that the solicitors with the conduct of the matter have failed to file an affidavit explaining why it has not been possible over a period of 15 months (notwithstanding Mr Colasante’s disabilities) to have an affidavit prepared. The mere fact that Mr Colasante has difficulties communicating orally does not, for example, explain why means of written and electronic communication might not be usable in the circumstances, and that is the type of evidence which the Court might have expected to be led as well to explain why it has not been possible or why the preparation of the affidavit has not seemingly been prepared in accordance with the Court’s orders.
In the Court’s view, the interests of justice will not be accommodated by adjourning this hearing, but can be accommodated by conducting the hearing on the basis of:
a)the affidavits already filed by the applicant; and
b)otherwise conducting the hearing orally with respect to evidence, objections and submissions.
The Court will make no orders with respect to the filing of further affidavits given that it has indicated that the evidence is to be led orally. That does not prevent any of the parties from exchanging affidavits, if they are ready, and it also does not prevent the parties from putting in writing an outline of submissions or chronology and providing those to the Court because that would, no doubt, be of assistance to the Court in the conduct of the trial. The Court leaves it to the professionalism of the solicitors and counsel concerned to make appropriate arrangements in that regard.
With respect to the applicant’s oral application for costs, it is appropriate that costs be fixed in accordance with the costs schedule to the FCC Rules. So there will be an order that the first and second respondents pay the applicant’s costs of the first and second respondents’ oral application for adjournment, but only in terms of the hearing fee. It will be more than a short mention in the circumstances; and the Court will make it for a half-day hearing fee of $997. In making that order the Court bears in mind that effectively the applicant conceded that he was unaware of the circumstances behind the adjournment application prior to coming down this morning, otherwise it might have been more, but in the circumstances it is just and appropriate to order the sum for the actual hearing itself.
In those circumstances, the Court proposes to make orders in the following terms:
a)the first and second respondents’ oral interim application to adjourn the hearing listed to commence on 28 October 2013 is dismissed;
b)orders (3)-(8) of the Court’s orders made 15 May 2013 be set aside;
c)except in the situation were evidence has already been filed in affidavit form, evidence be taken orally at the hearing listed to commence on 28 October 2013; and
d)the first and second respondents pay the applicant’s costs of the first and second respondents’ oral interim application to adjourn the hearing listed on 28 October 2013 in the sum of $997.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 22 October 2013.
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