C and C - [2006] FMCAfam 744

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & C

[2006] FMCAfam 744

FAMILY LAW ─ Interlocutory application ─ application to adjourn trial ─ application to adjourn dismissed.

Family Law Act 1975 (Cth)

Myer [1969] WAR 19
Reed and Draper [1995] FLC 92-649

Applicant:

CGJ

Respondent:

CRJ

File number:

MLM 2946 of 2006

Judgment of:

Walters FM

Hearing date:

7 November 2006

Date of last submission:

7 November 2006

Delivered at:

Castlemaine

Delivered on:

7 November 2006

REPRESENTATION

Counsel for the Applicant:

Mr G A Devries

Solicitors for the Applicant:

J A Middlemis

Counsel for the Respondent:

Mr T J Puckey

Solicitors for the Respondent:

Cynthia A Toose

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CASTLEMAINE

MLM 2946 of 2006

CGJ

Applicant

And

CRJ

Respondent

REASONS FOR REASONS

(Ex Tempore)

Before the court is an application on the part of the wife to adjourn the trial of this matter to a date to be fixed before me in Melbourne in the new year.
The grounds relied upon include an allegation that the husband has not provided information in relation to his current superannuation entitlements (a request having been made for that information on

20 October 2006). Further, and notwithstanding an early order that I made, that information has not been presented.
Both parties in proceedings before this court (and, indeed, in proceedings before the Family Court of Australia) have an obligation, to use a colloquialism, to “get their tackle in order” prior to the commencement of the trial. The fact of the matter is that this trial actually commenced when I was here in Castlemaine in August 2006. The trial was adjourned part-heard because it appeared to me then – and indeed it appeared I think to the practitioners involved in it as well – that it was not ready for hearing.
It should have been prepared well before the last occasion. I made it perfectly clear to everybody involved in the case when it was adjourned in August that the directions that I was making would have to be complied with and that the matter was going to proceed today. Indeed, I listed it with priority before me on this circuit.
The effect of that direction is that this matter takes priority over other matters, some of which involve the best interests of children. In my view, it is imperative that its priority be retained and that the integrity of the list also be upheld if at all possible.
No explanation has been provided to me as to why Mr Devries' instructors could not have requested information regarding the husband's superannuation entitlement well before 20 October. I do not excuse the husband failing to provide that information. He had an obligation to provide it, and I take that into account. In due course, and if that information comes to hand, I will give the wife leave to reopen for the purpose of testing that information before the court.
If it transpires that the husband has deliberately misled the court, then I will give appropriate consideration to referring papers to the AFP. We will see in due course whether the court has been misled in any way in relation to the husband's superannuation, but I am conscious that at the last hearing there was, at least to the best of my recollection, an agreement as to what the value of the superannuation was ─ although, admittedly, as at the end of the 2005 financial year.
I accept that the drought has probably bitten very hard indeed, that the wife's financial affairs are in a state of flux and that the farming community is suffering greatly. But the fact of the matter is that I made directions on the last occasion to the effect that valuations were to be provided by a certain date, and they were not. There is no reason why a valuation could not have been produced by the due date and then updated today to take account of the drought or any other factors that might be relevant.
Again the obligation was upon the advisers for these parties to get the case ready, well in advance of the trial date. For whatever reason, that did not occur.
Mr Devries has suggested that there might be some prejudice to his client if the matter proceeds. Quite what that prejudice is, I am not sure, and it has not been particularised.
In 1995 the Full Court dealt with the question of adjournment of a trial date in the case of Reed & Draper [1995] FLC 92-649. The Full Court identified two basic principles associated with adjournments. The first it described as “the injustice principle”, and the second it described as “the court resources principle”.
The injustice principle is a principle well known to lawyers and to the court system. Each of the jurisdictions has its favourite case which states the effect of the principle. The State that I come from, which is Western Australia, relies on Myer [1969] WAR 19 in relation to the injustice principle. In essence it requires the court to balance the potential injustice to each of the parties of an adjournment being granted or refused. If the justice of the case requires an adjournment, then it is to be granted[1].
[1] “To grant or refuse an adjournment is a matter for the discretion of the Court to whom the application is made, but where the refusal of an adjournment would result in serious injustice to one party an adjournment should be granted unless in turn this would mean serious injustice to the other party “Myer [1969] WAR 19, per Jackson J.
With effect from approximately 20 years ago, if not more, there has been a concurrent (or countervailing) principle described in Reed as “the court resources principle”. That principle emphasises that the days of parties and their practitioners setting time frames for litigation and proceeding leisurely along the track towards a trial are long gone. Modern case management principles, and the huge and multiple pressures on courts, compel judicial officers to ensure that parties move along the litigation pathway at a pace set by the court, and that they do so efficiently.
Parties must have demonstrably good reasons for not complying with orders and directions designed to ensure that matters proceed to trial efficiently. Part of the problem that led to the enunciation and formulation of the court resources principle is the sad fact that more and more litigation is being conducted in the courts, and fewer and fewer judicial officers (proportionally) are available to deal with that load. It is very easy for delays to occur. It is very easy for court lists to blow out if matters are not compelled to proceed on the dates that they are allocated.
We see a perfect example of that problem in the present case. It came before this court on circuit in August. It was not ready then, and it was adjourned to today with priority. Every effort should have been made by the parties and their legal representatives to get it ready. It now occupies a position in the list that some might consider should more properly have been allocated to cases having more importance or significance.
But in my view, the principal reason why an adjournment should not be permitted in this case ─ apart from the court resources principle, which in my view does apply in this case ─ is that, unfortunately, I have absolutely no confidence that this matter will be any closer to being ready for trial if I adjourn it than it is now.
I have no confidence that the relevant legal practitioners will make an effort to identify and particularise the queries that they need to make at an early stage, issue subpoenas if appropriate, and take the other

pre-trial steps that were obviously required. I do not understand why this case has not been prepared better than it has.
At the end of the day, though, no adequate grounds have been presented to me to justify an adjournment. The trial is going to proceed. The application for an adjournment is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for decision of Walters FM

Associate: Suzette De La Motte

Date: 20 March 2007