Lahiri & Saha (No 2)

[2022] FedCFamC1F 273

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lahiri & Saha (No 2) [2022] FedCFamC1F 273

File number(s):	BRC 8518 of 2020
Judgment of:	JARRETT J
Date of judgment:	21 February 2022
Catchwords:	FAMILY LAW – Practice and Procedure –Adjournment
Cases cited:	Buljubasic & Buljubasic (1999) 25 Fam LR 371
Division:	Division 1 First Instance
Number of paragraphs:	9
Date of last submission/s:	21 February 2022
Date of hearing:	21 February 2022
Place:	Brisbane
The Applicant:	Litigant in person
The First Respondent:	Litigant in person
Counsel for the Second Respondent	Mr Keane
Solicitor for the Second Respondent	Stacks Law Firm
The Third Respondent:	No appearance by the Third Respondent

ORDERS

BRC 8518 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR LAHIRI

Applicant

AND:

MS SAHA

First Respondent

MR FELTOS

Second Respondent

D PTY LTD AS TRUSTEE FOR THE D PTY LTD SUPERANNUATION FUND
Third Respondent

ORDER MADE BY:	JARRETT J
DATE OF ORDER:	21 FEBRUARY 2022

THE COURT ORDERS THAT:

1.All outstanding applications to adjourn the hearing listed to 21 February, 2022 are dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lahiri & Saha is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JARRETT J:

1. The application for the adjournment is refused.  There is no basis for the adjournment.  This application has been set down for hearing of the relevant issues since September last year.  This is the second attempt to have a trial of these proceedings and the issues that are set for determination in this trial.

2. It is the second attempt by the first respondent to adjourn today’s hearing.  The first attempt I dealt with and refused for reasons that I gave at that time in early February.  The grounds of the adjournment application have not really changed.  On the last occasion, it was said that there were serious issues that needed to be considered, that there were problems with the applicant’s standing vis-à-vis the second respondent and the trustee of the superannuation fund.  It was said that the third respondent, the trustee of the superannuation fund was unrepresented.  It was said that the first respondent did not have a lawyer because her lawyers were going to withdraw – and, indeed, the lawyers tried to withdraw, but because they had not given notice to their client as required by the rules, I refused that withdrawal.

3. It was said that there was to be contact made with a barrister in Queensland who specialised in insolvency matters, but that that person was not available for when the trial was listed.  It was said that there were difficulties with the first respondent’s health that prevented a proper preparation.  It was said that there was no proper disclosure by the first respondent’s trustee in bankruptcy, the second respondent.

4. All of those arguments have been reiterated again today.  They failed last time and they will fail this time.  I am not satisfied that there has not been proper disclosure, because there is no proper evidence before me upon which I could reach that conclusion.  There were orders made in September last year by Baumann J about disclosure.  There has been adequate time for any party who wished to complain about those matters to do so in the appropriate way. 

5. There is no evidence before me that would suggest that the first respondent is not capable of representing herself.  She asserts it from the bar table in submissions.  In the affidavit she filed late last week in support of this application, there is a medical certificate, but that medical certificate is not worth the paper it is written on.  It reiterates what the first respondent told the relevant doctor, but does very little more.

6. There is no basis to adjourn the application because there are proceedings pending in another Court somewhere.  There is no evidence upon which I could reach a conclusion that the preparation for the other case in the New South Wales Court of Appeal or in the Children’s Court of New South Wales has been so taxing and so demanding that preparation could not be given to this matter.

7. There is, in my view, no proper evidence to which I have been taken, which would demonstrate that there is any realistic prospect of the first respondent obtaining legal representation, even if the application was adjourned.  She gives evidence in her most recent affidavit of conversations with her lawyer, Mr DD, who is described as a senior associate at a law firm.  There is correspondence from him attached to the first respondent’s affidavit in which he points out – quite properly – that given the time with which he has been instructed he would not be able to be ready for a three-day trial.  Nothing is surprising in that.

8. What is surprising, however, is that if there was a realistic prospect of the first respondent having some form of legal representation from Mr DD, or anybody else for that matter, that that person would be making the application for the adjournment. And it is not unheard of in this court – and indeed others – for lawyers to be engaged specifically for the purpose of attempting to obtain an adjournment of proceedings.  In a decision of the Full Court of the Family Court of Australia called Buljubasic & Buljubasic (1999) 25 Fam LR 371, the Full Court points out that an application for an adjournment should be made in a proper way and where somebody is represented or is likely to be represented, then an application by the legal representative is appropriate. But there are no legal representatives here suggesting that if the case was adjourned they would take it on and prepare it in a proper way, so that it can be more fulsomely argued. None of that is present here.

9. In those circumstances, no basis is made out for the adjournment.  This is yet another attempt, in my view, to simple delay the hearing of this application.  What remains to be determined on this application are five orders sought by the first respondent in her response to an application in a case that was filed last year, and a trustee’s application in the case.  I intend to hear those matters.  The application for the adjournment is refused.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett.

Associate:

Dated:       21 February 2022