Burrell, John Llewellyn v Connell, Ross Ian

[1998] FCA 828

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 8246 of 1997

BETWEEN:	JOHN LLEWELLYN BURRELL APPLICANT
AND:	ROSS IAN CONNELL RESPONDENT
JUDGE:		SACKVILLE J.
DATE:		3 JULY, 1998
PLACE:		SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:   Mr Connell has applied for a further adjournment of this matter.  He does so on the basis that he required the transcript of the hearing that took place on 1 June and that he has been unable to obtain a copy of the transcript.  He says that the transcript is essential to ensure that he can conduct his case in this Court. 

According to his evidence, Mr Connell sent a letter on 5 June 1998 to the Federal Court advising that he required a transcript and asking for a copy of the transcript. He says that the letter was posted on that date.

A reply was sent on 17 June 1998 from the Court, directing Mr Connell to Auscript.  The letter provided a telephone number and a postal address as well as a fax number for Auscript.  Mr Connell did not, according to his evidence, receive the letter from the Federal Court until 23 June 1998, when he attended a post office which he says is some seven or eight kilometres from the place at which he was staying.

Although his evidence was not altogether clear, it appears that Mr Connell made no attempt to check whether a letter had been sent from the Court in the period between 5 and 23 June 1998, and that he made no inquiries of the Court to ascertain why he had not received a response to his letter.

Having received the letter from the Court on 23 June 1998, Mr Connell then wrote on 25 June 1998 to Auscript seeking the transcript.  He did not telephone Auscript after sending this letter to inquire whether a transcript was available. Mr Connell gave an explanation for failing to telephone which I find implausible.  In any event, Mr Connell claims that he had no reply from Auscript.

Mr Connell claimed that he had regarded the transcript as important to his case at least from the time he wrote to the Court.  Yet he made no inquiries of either the Court or Auscript, beyond sending the letters to which I have referred.

In these circumstances, it seems to me quite plain that Mr Connell has not taken reasonable steps to obtain the transcript that he claims he requires for the purposes of the hearing.  There are a variety of very simple steps that might have been taken.  These include telephoning the Court, telephoning Auscript and contacting the solicitors for the applicant, advising them of his need for a transcript and alerting them to his intention of applying for an adjournment if the transcript could not be obtained.  If the transcript was indeed as important to him as he claims, then one would have expected Mr Connell to have been very much more diligent in seeking the transcript.  It is to be remembered that he is not unfamiliar with the processes of litigation.

I should add that Mr Connell gave a further explanation about the importance of the transcript based upon an alleged telephone conversation with his mother.  Mr Connell alleges he was told by his mother that Mr Kavanagh, who gave evidence on the last occasion, made statements to her concerning his evidence.  I do not think, even if I were to accept that evidence, that it carries matters any further for the purposes of the adjournment application.  There is no evidence that Mr Connell took any steps to indicate that he wished to cross-examine Mr Kavanagh further or that he wished to recall any of the witnesses who gave evidence on the last occasion. 

Accordingly, I refuse the application for an adjournment.  Having said that, I think that there is a very simple answer to the transcript issue.  I shall now arrange for a copy to be made of the transcript and I shall provide a copy to Mr Connell so he has it for the purposes of his submissions.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated:            3 July, 1998

Counsel for the Applicant:	Self Represented
Solicitor for the Respondent:	John Burrell Solicitors
Date of Hearing:	3 July, 1998
Date of Judgment:	3 July, 1998