Douglas v State of Queensland

[2006] FCA 1015

FEDERAL COURT OF AUSTRALIA

Douglas v State of Queensland [2006] FCA 1015

PRACTICE AND PROCEDURE – vacation of trial date – inconvenience to the parties – interests of justice

Held: Trial date to be vacated.

The State of Queensland v JL Holdings Pty Ltd (1996) 189 CLR 146

DAVID DOUGLAS, GREGORY DOUGLAS, DAPHNE FOSTER AND CHRISTINE NED v STATE OF QUEENSLAND
QUD 389 OF 2005

COLLIER J
8 AUGUST 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 389 OF 2005

BETWEEN:

DAVID DOUGLAS
First Applicant

GREGORY DOUGLAS
Second Applicant

DAPHNE FOSTER
Third Applicant

CHRISTINE NED
Fourth Applicant

AND:

STATE OF QUEENSLAND
Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	8 AUGUST 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The hearing be adjourned to a date to be fixed.

2.Costs be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 389 OF 2005

BETWEEN:

DAVID DOUGLAS
First Applicant

GREGORY DOUGLAS
Second Applicant

DAPHNE FOSTER
Third Applicant

CHRISTINE NED
Fourth Applicant

AND:

STATE OF QUEENSLAND
Respondent

JUDGE:	COLLIER J
DATE:	8 AUGUST 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The notice of motion filed by the applicants on 11 July 2006 in respect of file QUD 389/2005 seeks an adjournment of the hearing in that matter until after the publication of the decision of the Full Federal Court in the matter of Baird & Ors v State of Queensland (No 377 of 2005). The hearing of QUD 389/2005 is currently scheduled to commence in Mt Isa on Monday 28 August 2006.

2. The respondent opposes the notice of motion.

3. As a general rule Courts are reluctant to vacate trial dates for a number of reasons, including that the parties are entitled to rely on trial dates which have been set, and that serious inconvenience to the parties, the Courts, and other litigants can arise because of the need to identify later trial dates. However, the justice of the case is the paramount concern in considering this issue. As was pointed out by Dawson, Gaudron and McHugh JJ in The State of Queensland v JL Holdings Pty Ltd (1996) 189 CLR 146 at 154:

   ‘Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.’

4. The applicants in this case have submitted that the case of Baird & Ors v State of Queensland (No 377 of 2005), which is currently on appeal to the Full Federal Court, is an application involving an almost identical application to the present except that it involved Aboriginal persons who had worked at the Hope Vale and Wujal Wujal reserves between 1975 and 1986. The applicants also submit that a comparison of the applications and the statements of claim in the two cases clearly illustrates this.

5. In both Baird and this case before me, the primary proceedings involve an application pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) for compensation for loss and damage suffered by the applicants as a result of the respondent breaching the Racial Discrimination Act 1975 (Cth).

6. Clear possible alternatives are that the hearing proceed, but judgment in this matter be reserved until the Baird appeal decision has been delivered, and/or the parties be given leave to make additional submissions after the hearing and in light of principles which may emerge from the Baird appeal. As the respondent has submitted, many of the applicants and the witnesses are elderly, and postponing the hearing of the matter will potentially exacerbate an issue of availability of witnesses which has already arisen. However in this case the applicants have submitted that:

   ·awaiting the appeal decision in Baird could result in the settlement of the present proceedings because it could clarify the application of the law relating to the events in question

   ·awaiting the appeal decision in Baird could result in reduced hearing days in the present proceedings because it could narrow the issues in dispute

   ·if the proceedings are not adjourned, it is possible that the proceeding will have to be reopened after the appeal decision in Baird, or, alternatively, there may be an appeal in the present proceedings which would have been avoided if the present proceedings awaited the appeal decision in Baird.

7. In my view it is appropriate that the trial date be vacated. I am persuaded that it would be in the interests of justice to do so. In my view, proceeding in late August in light of the aforementioned possibilities canvassed by the applicants could cause additional and unnecessary expense and inconvenience to the parties, the witnesses and the Court that would outweigh the inconvenience of rescheduling the trial date in these circumstances. Further, I am conscious that many of the applicants and witnesses are elderly, and requiring them to attend a hearing to give evidence, when, as postulated by the applicants, the matter may actually not proceed depending on the outcome of Baird, is an issue which in my view it is appropriate to take into account in deciding whether adjournment of this matter is appropriate.

8. Accordingly, I order that the hearing be adjourned to a date to be fixed and costs be reserved.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        8 August 2006

Counsel for the Applicant:	D O'Gorman
Solicitor for the Applicant:	Robert Bax & Associates
Counsel for the Respondent:	JE Murdoch SC and CJ Murdoch
Solicitor for the Respondent:	Crown Law
Date of Hearing:	26 July 2006
Date of Judgment:	8 August 2006