Ielo, Frank Robert v Marbrook Holdings Pty Ltd

[1997] FCA 1548

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 240 of 1996

BETWEEN:

FRANK ROBERT IELO
FIRST APPLICANT

ANTHONY FRANK MURDOCCA
SECOND APPLICANT

ANTONIO IELO
THIRD APPLICANT

COSTINA IELO
FOURTH APPLICANT

AND:

MARBROOK HOLDINGS PTY LTD
FIRST RESPONDENT

JOSEPH JOHN SALIBA
SECOND RESPONDENT

RAYMOND PETER SALIBA
THIRD RESPONDENT

JOHN RICHARD SALIBA
FOURTH RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	15 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex-Tempore Judgment)

In this matter an application made on 5 December 1997 by the respondents seeks the vacation of a hearing date of two weeks set down for this matter, beginning in early February 1998.  This date for hearing was fixed in early August 1997.  A mediation conference apparently took place in October 1997.  On 6 November 1997 a letter was forwarded to the solicitors for the applicants informing them that an application was to be made seeking an adjournment of the proceedings.  No application was made in fact until 5 December 1997.

The proceedings were commenced on 25 March 1996 by Application and Statement of Claim.  It has had a long history of directions hearings and at this stage I do not pause to allocate any responsibility on either side in relation to those matters.  The relevant circumstances were referred to at the directions hearings before me.  Effectively, if the hearing date of early February 1996 is adhered to, that will be in the order of 23 months after the proceedings were initiated by the applicants.  That is, it seems to me, in a case of this type, a very substantial period.

The grounds on which the application is sought to be justified are based on two considerations.  Firstly, a lack of communication within the office of the solicitors acting for the respondents due to an injury on behalf of the solicitor handling the matter and having over all control of it.  Secondly, the question of the date being inconvenient because it is during the fruit harvest season.

The problem which has arisen is that the stone fruit harvest is in full swing at the present time.  It is said that skill is required for the “timing” of the harvest and for a daily knowledge of what to pick.  If Mr Joseph Saliba is not present he fears that there will be a reduction in quality and a production loss.  There is also concern lest there should be damage to the crop as a result of hail.  Mr Saliba referred to an occasion in 1993 when the crop was damaged due to hail notwithstanding that there was protective netting or shielding of the crop.  He anticipates that this problem could recur.  Mr Saliba has been working at Bilpin since the early hours of the day and is working seven days a week.  It is said that the peach season will finish in about the first week of February and immediately work will begin on the apple harvest.  If the Court vacates the hearing date, it is said that, the respondents will be available for a two week hearing by mid-April 1998.

On the other hand, countervailing hardship is asserted on behalf of the applicants in the form of medical certificates which indicate problems with respect to anxiety and concern arising as the result of the litigation.  No doubt there is always a strong element of anxiety and stress.  In this case it appears significant and is supported by medical certificates.

The question which I have before me is to balance the interests of the parties and to endeavour to achieve a fair result.  As between the competing hardships of the parties, I am not satisfied that the hardship which will be occasioned to the respondents if the application is refused will outweigh the hardship which will be experienced by the applicants if the application is granted.

Apart all together from the private interests of the parties, there is also the consideration that there is a strong public interest that litigation is conducted efficiently and expeditiously to ensure that cases come for hearing with minimal delay and that hearings in cases of other parties should not be displaced or postponed from the Court's lists because of neglect or delay in the conduct of preceding cases.

This principle, of course, is not an over-riding one and does not mean that automatically case management and the public interest takes precedence over the private rights of the parties.  As the High Court recently pointed out, the primary consideration is whether justice can be done if the adjournment is refused.  In the present case the assertion is one of hardship.  I am not satisfied that it will not be possible for justice to be properly and appropriately administered in the light of the evidence and the submissions of the parties if the adjournment is refused.  Nor am I satisfied that other measures cannot be taken to alleviate any difficulties the respondents may possibly encounter.

It is fully appreciated by the Court that farmers and other persons involved in harvesting experience difficulties of resources in harvesting seasons.  Nevertheless, I think holding the balance as between the parties and taking into account the importance of ensuring that substantial periods of time of the Court are not thrown away and are available for the hearing of cases in an efficient and timely manner, I refuse the application for an adjournment.

I should say in this case there is a particular consideration of importance, namely delay.  The dates were fixed four months ago today, six months before the anticipated hearing.  No question was raised about the harvesting difficulties until apparently November 1997 and the application was not taken out until 5 December 1997.  As a result of this, the adjournment application has come on for hearing before me at a very late stage.  I am not prepared to throw away the two week period fixed on the material which is placed before me.  I think it would be quite unfair to the applicants for that to be done.  The material does not justify this course.

Accordingly, I refuse the application but I will reserve any question of costs.  I indicate my present view is that the respondent to the notice of motion for the adjournment should have the costs of this application.  I will make a final determination on that question after I have heard the merits of the matter.

The matter will proceed in February.  I will reserve liberty to apply and will give detailed directions as to what is required for the hearing.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             15 December 1997

Counsel for the Applicant:	Mr O G Watt
Solicitor for the Applicant:	Peter C Prior & Co
Solicitor for the Respondent:	L Rundle & Co
Date of Hearing:	15 December 1997
Date of Judgment:	15 December 1997