GEORGE v NORTHERN HEALTH (No.2)
[2011] FMCA 853
•20 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GEORGE v NORTHERN HEALTH (No.2) | [2011] FMCA 853 |
| INDUSTRIAL LAW – Application for an adjournment – reason for adjournment – applicant already had opportunity to get legal representation –already had adjournment – application refused. |
| Fair Work Act 2009 (Cth), ss.340, 341 Federal Magistrates Act 1999 (Cth), ss.3, 42 Federal Magistrates Court Rules 2001 (Cth). r.9.03, 1.03 |
| Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Bency George v Northern Health [2011] FMCA 445 |
| Applicant: | BENCY GEORGE |
| Respondent: | NORTHERN HEALTH |
| File Number: | MLG 1571 of 2010 |
| Judgment of: | O'Sullivan FM |
| Hearing date: | 20 October 2011 |
| Date of Last Submission: | 20 October 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 20 October 2011 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Millar |
| Solicitors for the Respondent: | Middletons |
ORDERS
The application for an adjournment in the application in a case filed
18 October 2011 be refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1571 of 2010
| BENCY GEORGE |
Applicant
And
| NORTHERN HEALTH |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court today are proceedings commenced by Bency George (“the Applicant”) against Northern Health (“the Respondent”). The Applicant commenced proceedings on 12 November 2010 making allegations the Respondent had breached the Fair Work Act2009 (Cth) (the FW Act).
The application was given a first return date of 28 January 2011.
On 23 November 2010 the Respondent filed a notice of address of service. On 27 January 2011 the first return date for the application was vacated by consent. The matter was adjourned for a directions hearing on 11 March 2011. On 25 February 2011 there was a response filed on behalf of the Respondent.
The rest of the procedural background up and until 6 June 2011 in this matter is set out in Bency George v Northern Health [2011] FMCA 445 at paragraphs [3] to [8].
On 6 June 2011 for the reasons set out in George v Northern Health [2011] FMCA 445 the trial was adjourned. Orders and directions were made for the matter to be the subject of a trial today,
20 October 2011. Those orders were:
1.The applicant’s adjournment application be granted.
2.The respondent’s costs thrown away as a result of the adjournment be fixed at $1,320.00 and those costs be reserved.
3.The hearing be adjourned to 20 October 2011 at 10.00am (with an estimate of 2 days) at the Federal Magistrates Court of Australia at Melbourne.
4.The applicant file with the Court and serve on the respondent all affidavit material 28 days prior to adjourned date.
5.The respondent file with the Court and serve on applicant any further affidavit material on which it seeks to rely 14 days prior to adjourned date.
6.The applicant and respondent file and serve an outline of submissions 72 hours prior to adjourned date.
Since then the Applicant has obtained further legal representation and has filed material for today’s trial. Up and until this morning the Applicant was represented. This morning solicitors who had been on the record for the Applicant having been engaged with the assistance of PILCH were given leave for the reasons given ex tempore to withdraw pursuant to Rule 9.03 of the Federal Magistrates Court Rules 2001 (“the Rules”).
The Applicant then asked that the Court deal with the application in a case that she filed on her own behalf on 18 October 2011 which sought the following order:
“1.Adjourn the hearing on 20th & 21st of October 2011 without any costs added on to me.”
The application in a case was accompanied by an affidavit where the Applicant deposed:
“I haven’t got proper advice from the Lawyers (NAME DELETED) I meet with them yesterday for the first time. I asked them to meet and discuss my case which they were not available. They asked me to sign their terms and conditions which one of them was a concern to me. They have been asking me to settle the matter.
They refused to add couple of points in to my submissions which they refused.
Barrister [NAME DELETED] said he was not ready to add anything to the submissions. If I don’t agree as it is he will withdraw from the application, yesterday around 10.30-11 at [NAME DELETED]. (Verbally).
[NAME DELETED] terms and condition 3.2.6 which I refused to accept as it was.
They haven’t gone through the document which they have prepared for me and without knowing how it is related to any application.
As you are aware of my health condition. This has added more stress and anxiety. I have attached the letter from the psychologist and a letter from the Emergency Dept Northern Health, Physician Dr Benjamin Lui.
I was concerned about the serve they were offering me.”
The Court also had regard to the attachments to that affidavit to the extent necessary to do so to deal with the application for an adjournment.
The Applicant has told the Court that she needs an adjournment of the trial to be represented. The Applicant told the Court that she will not be able to represent herself and that she believes it is appropriate and necessary for her to have the trial adjourned (as she says without any cost) so that she can be represented. The difficulties confronting each of the reasons advanced in support of her application for an adjournment are clear from the transcript of this morning’s hearing.
The Respondent opposed the application for an adjournment. Counsel for the Respondent noted that the Applicant has already had an adjournment. Counsel for the Respondent told the Court the Applicant had opportunities to get legal representation. Counsel for the Respondent told the Court the Applicant has been competently represented. There is material that has been prepared and filed on behalf of the Applicant on the Court file. Counsel for the Respondent noted the Applicant has had help from PILCH to get her case in order. Counsel for the Respondent noted two different solicitors have acted for the Applicant. Counsel for the Respondent noted the Applicant says one of the reasons why the trial should be adjourned is that her solicitors are no longer acting for her as the terms and conditions of their retainer were not acceptable to her and that is not a proper reason for an adjournment.
Counsel for the Respondent noted the history of this matter shows the Applicant has already had an adjournment. Counsel for the Respondent noted to the extent that the Applicant believes other issues may need to be before the Court, she will have an opportunity at the trial hearing to put that material before the Court. Counsel for the Respondent noted to the extent that the Applicants material contains issues relating to claims about her health they aren’t in admissible form. In the ultimate Counsel for the Respondent submitted the reasons advanced do not amount to a reason why the matter should be adjourned, particularly having regard to the stated reason for the earlier adjournment, and having regard to the fact there is no medical evidence certifying that the Applicant can’t appear at Court. When those issues are weighed as against the need for finality in proceedings, the prejudice, inconvenience and cost that the Respondent has already been put to the cost, inconvenience and expense that other litigants who would be inconvenienced by a further adjournment are also taken into account the Respondent submitted the matter should not be adjourned.
Approach to adjournment application
Against the background of those submissions, the Court turns to consider the principles to apply in relation to the application for an adjournment.
Adjournments are not readily granted in this Court. However if an adjournment application is made then the Court will hear and determine it. The question of adjournment requires the Court to balance issues such as case management and prejudice.
It has been made clear courts are entitled to manage their procedures so that the interests of justice can be served by the speedy resolution of cases at the minimum expense (see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (Aon)).
In Aon their Honours made a number of points, which included that:
a)
the conduct of litigation is not merely a matter for the parties.
The need to avoid disruptions in the court’s lists, with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard, is a relevant matter (at [93]);
b)when considering an application such as this the court should take account of other litigants, not just the parties to the litigation in question (at [94]-[95]);
c)costs are not always a sufficient compensation for the vacation of a hearing date (at [99]-[100]);
d)there may be cases where it may properly be concluded that a party has had sufficient opportunity to make their case and that it is too late for an adjournment application, having regard to the other party and the other litigants awaiting trial dates (at [102]);
e)the fact that an explanation has been offered for the delay in raising the issue is relevant, together with whatever explanation may be given (at [103]); and
f)whilst all matters relevant to the exercise of the power should be considered substantial delay, wasted costs and the concerns of case management are important (at [111]).
In the context of the statements in Aon, the role and mode of operation of this Court are also relevant. They are as set out in the Federal Magistrates Act 1999 (Cth)[1] and the Federal Magistrates Court Rules 2001 (Cth),[2] as prescribed by the objects of the FM Act[3] and the objects of the FMC Rules,[4] provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
[1] “FM Act”.
[2] “FMC Rules”.
[3] FM Act, ss.3 and 42.
[4] FMC Rules, r.1.03.
The substantive application is brought under the jurisdiction given to the Court by the FW Act. The Applicant alleges adverse action was taken against her by the Respondent. The principles and object of the FW Act are relevant. However the Court also needs to have regard to the principles I have already indicated which is that this Court should operate as informally as possible, it shouldn’t be protracted in its proceedings, it should endeavour to resolve proceedings justly, efficiently and economically, using streamlined procedures to do so, and doing so in a way that avoids undue delay, expense and technicality.
Given the background to this matter and having regard to the reasons why the Applicant has sought an adjournment today, I do not consider there to be a proper basis for the grant of the adjournment.
The Applicant did have solicitors engaged through PILCH but they have withdrawn as the Applicant had not signed their pro bono costs agreement. There is material before the Court from the Applicant including a comprehensive affidavit and submissions. I have had regard to the stated reasons for making such an application. As I have indicated to the Applicant, on the basis of the history of this matter, I can have no confidence that there won’t be yet another application for an adjournment to get another legal representative when the third lot of lawyers she engages with are no longer acting for the Applicant.
Given this the position that the Applicant finds herself in today is, in my view on the material before the Court, unlikely to change even if an adjournment was granted. Obviously, in the context of an application for an adjournment I have got to take into account the interests of the Respondent. As Counsel for the Respondent has noted, the Respondent has incurred costs. I note the submission if an adjournment is granted the Respondent is likely to continue to incur costs. I accept the costs will be greater still if today’s hearing is adjourned. I accept there is also prejudice to not only the Respondent but also other litigants who have been waiting for a precious trial date which this Applicant has had the privilege of getting within a short space of time since the last hearing that was adjourned at her request to take into account.
If I was to accede to the adjournment application, further days of court time would be lost. This would be in addition to the days lost on the last occasion. The fact that the matter has been allocated a date for a trial today has precluded today’s date being available to other litigants including litigants in the Court’s family law jurisdiction who face very distressing delays in dealing with disputes involving their children or division of their property. This factor is relevant to the issue of inefficiencies and waste of court resources. Having regard to the High Court’s decision in Aon which I have referred to earlier in these reasons, clearly case management considerations, including the proper use of court resources, interests of other litigants relevant weigh against the exercise of the discretion to grant the adjournment application.
When I weigh all those competing interests against the interests of the Applicant in this matter having regard, as I have, to the material now before the Court, there is no reason why this matter couldn’t proceed for a hearing starting at 2.15 pm today. For those reasons I refuse the application for an adjournment made in the application in a case filed on 18 October 2011. The matter will be stood down until 2.15 pm this afternoon at which time the trial will commence.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Date: 20 October 2011