Jury v McCue - [2010] SASC 222

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
JURY v MCCUE & ANOR
[2010] SASC 222
Judgment of The Honourable Justice Gray
28 July 2010
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - OTHER MATTERS
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - ADJOURNMENT
Appeal against the decision of a District Court Judge dismissing an appeal from the orders made by the Residential Tenancies Tribunal requiring the appellant to vacate premises - the appellant failed to attend hearing of appeal - adjournment sought.
Held: appeal dismissed - no merit in the appeal - no prejudice occasioned by refusal to grant an adjournment.
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Queensland v J L Holdings (1997) 189 CLR 146; Bhamjee v Forsdick (No 2) [2004] 1 WLR 88, considered.

JURY v MCCUE & ANOR
[2010] SASC 222
Civil
GRAY J:

This is an appeal against the decision of a District Court Judge dismissing an appeal from the orders made by the Residential Tenancies Tribunal, requiring the tenant and appellant, Shirley Mae Jury, to vacate premises.
On 21 May 2010 I dismissed the appeal. These are my reasons for that decision.
Background
In or about November 2009, a notice of termination of tenancy was served on Ms Jury. It is apparent that she was substantially in arrears with respect to rent. Following an indication that she had arranged alternative accommodation, the notice was withdrawn. Ms Jury did not vacate and a further notice of termination was served on 4 February 2010. That notice required her to vacate the premises by 8 April 2010.
Ms Jury applied to the Residential Tenancies Tribunal and a hearing was set for 21 April 2010. She was unable to attend on that date and the hearing was vacated, with a further date for hearing being fixed for 28 April 2010. It is apparent that on that occasion, Ms Jury did not attend, and the tribunal proceeded to a determination in her absence. On that occasion, the Residential Tenancies Tribunal ordered that Ms Jury move out of the identified premises by 11.00am on 5 May 2010. Additional orders were made, that the security bond of $200.00 be paid to the landlord and that Ms Jury pay to the landlord $3,030.00 in respect of arrears in rent.
Ms Jury appealed to the District Court against the orders of the Residential Tenancies Tribunal. The matter came on before a Judge of the District Court on 5 May 2010. On that occasion, Ms Jury again did not appear and the hearing proceeded to a determination in her absence. The Judge heard the contentions of the landlords and dismissed the appeal, ordering that possession be given by 5.00pm on 7 May 2010, but otherwise confirming the orders of the Tribunal. The Judge took into account the fact that Ms Jury was substantially in arrears of rent, owing an amount greater than $3,000.00, that she had been given adequate notice to leave the premises and that there was no basis on which the Tribunal’s order should be set aside or varied on appeal. Immediately subsequent to the making of that order, Ms Jury arrived at Court. The Judge gave her an opportunity to put her case. However, ultimately the Judge concluded that she had not presented any material that would suggest that her appeal should be allowed. In the circumstances, the Judge altered his order to allow further time for Ms Jury to vacate, ordering that she vacate the premises by 5.00pm on 12 May 2010. It is against that order that Ms Jury appealed to this Court.
The Appeal
The matter came on before me on 21 May 2010. Ms Jury did not appear on that occasion. It is apparent that on 20 May 2010, she attended at the Court Registry, seeking an adjournment of the hearing listed for 21 May 2010. No formal application to adjourn was made. The following handwritten note was provided to the Registry:
Since lodging my application I have fallen ill vommitting [sic] and hardly being able to stand up or any movement at all with extreme dizziness and fall over. Also a lot of pain. I was going to try to attend but now I think not. I ask for an adjournment.
A note from a medical practitioner was included, certifying that Ms Jury was suffering a medical illness for 19 to 21 May 2010 inclusive.
The Court was informed that when Ms Jury attended at the Registry on 20 May 2010 she indicated that she would not be able to attend the hearing on 21 May 2010. However, following a discussion with Registry staff, it is apparent that she indicated that she would in fact attend. It is significant that Ms Jury was able to attend at the Registry on 20 May 2010 despite her asserted ill health. On the morning of 21 May 2010, prior to the commencement of the hearing, the following message was provided to my chambers by the Registry:
I have just taken a call from Shirley Jury advising that she will be unable to make the court hearing today (she is feeding her dogs and it’s just impossible to make it…)
she would like an adjournment.
Although Ms Jury’s initial application for an adjournment was withdrawn and the application made on 21 May 2010 was not properly made, I considered the application for an adjournment on its merits. It is to be noted that on its face, a telephone call by Ms Jury on the morning of the hearing to inform the Court that she would not be able to attend as she was feeding her dogs, is not an adequate basis for an adjournment.
The Merits
Ms Jury’s notice of appeal was incomprehensible such that it was difficult to understand the complaints made. It would appear that the appeal documents had not been served on the other parties. The notice of appeal appeared to rely on Ms Jury’s non-attendance on the previous occasion, and on an asserted failure to “ascertain whether repairs and renovations are major enough for tenant to have to vacate”, and a further “failure to realise emergency housing does not exist”. Further difficulties experienced by Ms Jury with respect to the alleged state of the premises, her health and the situation of approximately 16 dogs housed at the premises, were put in support of the appeal. The document appeared to assert that she has not had a fair opportunity to present her case.
My review of the materials indicates that Ms Jury has no arguable appeal against the orders of the District Court Judge. No error on the part of the District Court Judge has been identified. My review of the Judge’s reasons indicates that the Judge correctly took into account the fact that Ms Jury was substantially in arrears of rent, that she had been given adequate notice to leave the premises and that there was no basis upon which the Tribunal’s order should be set aside or varied on appeal. It is relevant that the complaint identified in Ms Jury’s notice of appeal to this Court, that she “was unable to have full attendance at hearing on Wednesday 12 [sic] May 2010”, is misconceived. Despite Ms Jury arriving subsequent to the Judge’s determination and making of orders, the District Court Judge gave her an opportunity to make submissions and put forward her case, and ultimately amended his order to allow further time for her to vacate the premises.
It is further relevant that Ms Jury has persistently failed to appear on scheduled occasions while this matter has progressed through the courts. The High Court in Aon Risk Services Australia Ltd v Australian National University[1] recently commented in detail on the need to ensure that the resources of the court are not wasted through unnecessary delays. French CJ observed:
[1] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [25]-[27].
Recognition of the public interest in the administration of civil justice procedures in Australia and the United Kingdom pre-dates the Woolf Report and its attendant reforms. In Dawson v Deputy Commissioner of Taxation, King CJ acknowledged the responsibility of judges to ensure, “so far as possible and subject to overriding considerations of justice”, that the limited resources which the State commits to the administration of justice are not wasted by the failure of parties to adhere to trial dates of which they have had proper notice. In a late amendment case considered by the House of Lords in 1987, there was a marked departure from the approach of Bowen LJ in Cropper v Smith. Lord Griffiths required that judges considering amendments weigh in the balance: the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently.
The same indulgence could not be shown towards the negligent conduct of litigation as might have been possible in a “more leisured age”. That approach was followed by Sheppard J in a revenue case heard in the Federal Court. And in the New South Wales Court of Appeal in GSA Industries, Samuels JA said that:
the emollient effect of an order for costs as a panacea may now be consigned to the Aladdin’s cave which Lord Reid rejected as one of the fairy tales in which we no longer believe.
The approach reflected in these authorities was applied by a majority of the Full Court of the Federal Court in Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd.
Sali v SPC Ltd was concerned with a refusal by the Full Court of the Supreme Court of Victoria to grant an application for an adjournment of an appeal. By majority, this court held that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider “the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties”. Brennan, Deane and McHugh JJ went on to say:
What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.
Toohey and Gaudron JJ dissented in the result but acknowledged by reference to GSA Industries, that:
The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and 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 are pressing concerns to which a court may have regard. (footnote omitted)
… there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn.
[Footnotes omitted]
Similar observations were made in the joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ,[2] where their Honours referred to the earlier decision of the High Court in Queensland v J L Holdings.[3] In that case, Dawson, Gaudron and McHugh JJ held that although case management principles may be relevant, they could not be used to prevent a party from litigating a fairly arguable case, observing:[4]
…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.
…
…Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties…
[2]    Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [55]-[57].
[3]    Queensland vJ L Holdings (1997) 189 CLR 146 at 154–155.
[4]    Queensland vJ L Holdings (1997) 189 CLR 146 at 154, 155.
The efficient use of court resources and the impact of unmeritorious claims on other litigants’ access to courts were discussed in Bhamjee (No 2) in the context of the court’s inherent jurisdiction to restrain abuses of its processes. In that case, Lord Phillips noted: [5]
…It is also that the court is having to divert the skilled attention that ought to be paid to cases of real merit which warrant early hearings to cases which have no merit at all. …
…
The court, therefore, has power to take appropriate action whenever it sees that its functions as a court of justice are being abused ... A court's overriding objective is to deal with cases justly. This means, among other things, dealing with cases expeditiously and allotting to them an appropriate share of its resources (while taking into account the need to allot resources to other cases). This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications. They thereby divert the court's resources from dealing with meritorious disputes, delay the handling of those disputes, and waste skilled and scarce resources on matters totally devoid of any merit. …
[5] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88 at 91, 93.
Although the appeal in this case may not be an abuse of the court’s processes, these observations have relevance in the circumstances of the present proceeding where the Court record indicates that Ms Jury has failed to attend scheduled hearings on numerous occasions and has sought adjournments throughout. In considering the application to adjourn the proceedings, it is relevant to consider the public interest in the efficient use of court resources. In the present proceeding, the documents demonstrate that Ms Jury has been unable to identify or assert an arguable case, and as a consequence the refusal to adjourn the hearing does not occasion an injustice to her. Ultimately, where there was no merit in Ms Jury’s appeal, no prejudice was occasioned by my refusal to adjourn the hearing.
Conclusion
It was in these circumstances that I considered it appropriate to refuse to adjourn the hearing and to dismiss the appeal.