BIZ16 and Anor v Minister For Immigration and Anor (No.2)

[2017] FCCA 2405

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIZ16 & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 2405

Catchwords:
PRACTICE AND PROCEDURE – Application for an adjournment – whether adequate reasons given for inability to proceed with hearing – whether there would be any utility in granting an adjournment – adjournment refused.

First Applicant:

Second Applicant:

BIZ16

BJA16

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1410 of 2016

Judgment of: Judge Manousaridis

Hearing date: 4 August 2017

Delivered at: Sydney

Delivered on: 4 August 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitor for the First Respondent: Mr L Leerdam of DLA Piper Australia

ORDERS

1. The applicants’ application for an adjournment is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1410 of 2016

BIZ16

First Applicant

BJA16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. On 28 July 2016, this matter came before a Registrar on a first court date.  On that day the Registrar made directions for the future conduct of this matter and ordered that the matter be set down for a show-cause hearing before me today, that is to say, 10.15am on 4 August 2017.  In the course of my asking the first applicant to identify the material on which he relies, it emerged that the first applicant, who speaks on behalf of himself and the second applicant, his wife, wished to have me adjourn today’s hearing in order to obtain legal representation. 

2. I pointed out to the applicant that the matter was set down for hearing over a year ago or, at least, the proceeding had been commenced over a year ago, and asked why, during that period, the first applicant was unable to obtain a lawyer. He said it was due to his financial difficulties. He had made no inquiry about securing a lawyer. He was unaware of how much it would cost to obtain a lawyer. I asked him how he thought he might be able to afford a lawyer. He said that he would seek to save the appropriate amount of money. When I asked the first applicant what amount of time he said he required, he said as much time as I was prepared to give him. That answer is unsurprising, given that the applicant does not know how much it would cost him to retain a lawyer and, hence, whether and if so, how long it would take him to be able to raise the money necessary to retain a lawyer.

3. The application for an adjournment is opposed by the first respondent, the Minister, essentially on the basis that there would be no utility in granting the adjournment because there is nothing that was said by the first applicant, even if accepted as true, that would indicate that the applicant would, at any time, be in a position to retain a lawyer. 

4. The Court has power to adjourn a hearing. That power is discretionary, but that discretion is exercised, having regard to well-established principles. At the very least, it requires the Court to consider the reasons why it is said the matter needs to be adjourned. Secondly, the Court needs to consider whether, if the adjournment is granted, there would be some utility in the adjournment being granted. Related to that question is the question of prejudice to the parties seeking the adjournment, if the adjournment is not granted. The final matter is what prejudice the party resisting the adjournment is likely to suffer if an adjournment is granted.

5. If I turn to the first factor that I identified, the reason given why the applicant is not in a position to proceed today is the absence of legal representation. However unsatisfactory a position a party may find himself or herself appearing in court without a lawyer may be, the inability of such person to have legal representation does not, by itself, constitute a valid reason for a matter being adjourned. There may well be circumstances where there is a sudden change in legal representation or a matter has been brought on urgently in circumstances where the party has been unable to secure legal representation. That, however, does not apply to the circumstances of this case. The matter was commenced over a year ago and, given what the applicant said about his financial circumstances, the reason he has been unable to obtain legal representation or, at least, a potential reason, has been his inability to afford representation. That does not by itself give rise to a factor in favour of adjourning the matter. More important is whether there would be any utility in granting an adjournment. From what the applicant has said to me, there appears to be no prospect that the first applicant will ever be able to obtain that legal representation, although that proposition can be put less absolutely by saying there does not appear to be any substantial prospects that he could do so.

6. When one then turns to any prejudice the applicant will suffer if an adjournment is not granted, that has been already covered by my finding that the applicant does not have substantial prospects of obtaining legal representation. That is, the first applicant will suffer no prejudice if I do not grant the adjournment because, as I have found, it is unlikely he will obtain any legal representation in the future so that, if the matter is adjourned, the likely situation when the matter resumes will be that the applicant will be here before me again without any legal representation.

7. There is another aspect which deals with prejudice if an adjournment is not granted, and that is whether the applicant’s prospects of succeeding on the claim will, in some material way, increase. Whether or not that will occur if an adjournment is granted and if a lawyer is engaged is entirely speculative, and in the circumstances of this case, does not weigh in favour of the granting of an adjournment. 

8. I finally turn to prejudice to the Minister.  Usually, although not always, the main prejudice that a party faces if an adjournment is granted against that party’s opposition is that that party will have incurred costs it otherwise would not have incurred. That prejudice can usually be cured by ordering that the party seeking the adjournment pay the other side’s costs thrown away by the adjournment. Given what the first applicant has said to me about his financial circumstances, it would appear that any costs thrown away because of any adjournment I might grant would not be compensated by any order as to costs that I might make against the applicants because the applicants do not appear to have the financial resources to meet an order for costs. 

9. Having regard to all the matters which I have just related, I am not satisfied that it is in the interests of the administration of justice to grant the first applicant the adjournment he seeks.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  3 October 2017