Harrison v Commonwealth of Australia (as represented by the Department of Defence)
[2025] FedCFamC2G 161
•11 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harrison v Commonwealth of Australia (as represented by the Department of Defence) [2025] FedCFamC2G 161
File number(s): CAG 13 of 2024 Judgment of: JUDGE CAMERON Date of judgment: 11 February 2025 Catchwords: PRACTICE & PROCEDURE – Application in a proceeding to adjourn the hearing – relevant considerations. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 1.04
Fair Work Act 2009 (Cth)
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Division: Fair Work Number of paragraphs: 14 Date of hearing: 11 February 2025 Place: Canberra Applicant: The applicant appeared in person Counsel for the Respondent: Ms P Bindon Solicitor for the Respondent: Mr H Chang (Minter Ellison) ORDERS
CAG 13 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RACHEL ANNE HARRISON
Applicant
AND: COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF DEFENCE)
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
11 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The applicant’s application to adjourn the hearing be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
Almost exactly four months ago, on 10 October 2024, this matter was listed for hearing over three days, commencing today.
This morning, the applicant, Ms Harrison who is presently unrepresented, has applied for an eight-week adjournment, submitting to the Court that:
(a)although she had received some gratuitous support from a legal practitioner in the period since the matter was listed for hearing, she had been unable to obtain representation because she has had insufficient funds to retain solicitors or counsel;
(b)in very recent times, a person whom I infer to be a local practitioner had indicated that he would represent her and had advised her to seek an adjournment today;
(c)the Court had been misled by the respondent (Department) when it provided the Court with a marked-up version of her proposed amended statement of claim, in that the document provided was eight pages short, which indicated that material had been omitted;
(d)she suffered from autism spectrum disorder, which had made it difficult for her to prepare her case; and
(e)the Department had only very recently produced certain documents on subpoena and these needed to be considered in the context of proposed amendments to the statement of claim.
I do not find those arguments persuasive.
As noted to Ms Harrison during submissions this morning, at the directions hearing in October last it was she who pressed for an early hearing. At that time she said, amongst other things:
I prefer, in all honesty, your Honour, to have the hearing between January and February, no later than February, if possible …
It is not apparent from Ms Harrison’s submissions this morning what has changed since that time that would warrant a delay in the hearing.
Principles relevant to this application emerge from the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (Aon). Certainly, Aon was concerned with a late amendment which had the effect of making the hearing date go off, but an application for the vacation of a hearing date is an analogous situation.
The leading judgment in that case is that of Gummow, Hayne, Crennan, Kiefel and Bell JJ. Their Honours highlighted a number of issues which are appropriate to be taken into account in situations similar to the one presenting today. Their Honours made a number of points, which I will summarise:
(a)the conduct of litigation is not merely a matter for the parties; it is also one for the Court. 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;
(b)when considering an application such as this, concern must be had not just to the applicant, but also to the requirements on the court to do justice to all litigants. It may be just, when an adjournment is sought, that the Court take account of other litigants, not just the parties to the litigation in question;
(c)it should be taken into account that costs are not always a sufficient compensation for the vacation of a hearing date and the judge is entitled to weigh in the balance, for instance, the strain which litigants impose upon litigants;
(d)much may depend upon the point at which the litigation has reached relative to a trial when the application for an adjournment or vacation of a date is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to make the case and that it is too late for the application in question, having regard to the other party and the other litigants awaiting trial dates;
(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; and
(f)all the matters relevant to the exercise of the power should be weighed. The fact of substantial delay, wasted costs and the concerns of case management will assume importance in such circumstances.
In the context of those statements, the Court’s statute is relevant. Section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act) states that:
190 Overarching purpose of civil practice and procedure provisions
(1)The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes
(a) according to law; and
(b) as quickly, inexpensively and as efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
…
Those objects and purposes are repeated in rule 1.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), which relevantly provides:
(1)The overarching purpose of these Rules, as provided in section 190 of the Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
(2)To assist the court, the parties must:
(a) avoid undue delay, expense and technicality; and
(b) consider options for primary dispute resolution as early as possible.
…
While I appreciate that Ms Harrison is unemployed and has not been in a position to retain legal advisers, that is not uncommon in this Court. It is certainly not a situation different from the one which applied when Ms Harrison pressed for the present hearing date in October. I do acknowledge Ms Harrison's submission that a practitioner has indicated a willingness to take up her case on a no-win, no-fee basis but, given her previous advices to the Court that legal representation was imminent, it is not unreasonable of the Court to require something more than a submission that help is on the way before it would adjourn a three-day hearing. I note Ms Harrison's submission, in reply to the Department’s submissions, that the practitioner she has identified confirms his availability to act in this matter. However, the circumstances of this matter are such that I need more than that to adjourn the hearing. If the legal practitioner takes a formal step in the proceeding, that may alter things, but we have not reached that point yet.
I appreciate that Ms Harrison believes, based on advice she has received, that she has autism spectrum disorder and it well may be the case that she does. However, the point is that if she does suffer from that condition, she would have suffered from it in October 2024 as well. The only relevant change in her position in the meantime is that she can put a name to her condition and, hopefully, know how to address it and live with it more effectively than perhaps in the past.
As to the submission that the marked-up version of the proposed amended statement of claim provided by the Department to the Court is misleading, I can say that has had no effect on the Court's view of the matter or its preliminary consideration of the matters in issue in this case. Ms Harrison has suggested that she undertake a detailed analysis of the marked-up documents, but that is unnecessary at this point. A decision on the proposed amendment may be made at a somewhat higher level of abstraction.
I appreciate that documents have been produced on subpoena only very recently but, based on what the registrar ordered be produced, it appears to me that they are the sorts of documents most relevant to cross-examination. To the extent that they may be relevant to the statement of claim, I suspect that such relevance is limited to matters Ms Harrison would like to pursue in her proposed amended statement of claim were she to be granted leave to file and serve it. In that case, the significance of the documents is hypothetical only.
I also note that if this matter were to adjourn, these three hearing days would be wasted and the matter relisted at a time when other litigants could be before the Court seeking the resolution of different matters. The present circumstances do not indicate that other litigants should be inconvenienced in this way.
The respondent has also submitted that it would be prejudiced in costs were the matter to be adjourned, and I accept that to be the case. That is particularly relevant in a no-costs jurisdiction such as this, this being a Fair Work Act 2009 (Cth) matter.
The applicant’s application in a proceeding to adjourn the hearing will be refused.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 9 April 2025
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