Lever and Comcare (Freedom of information)

[2018] AATA 1091

Lever and Comcare (Freedom of information) [2018] AATA 1091 (26 April 2018)

Division:FREEDOM OF INFORMATION DIVISION

File Number:           2015/5746

Re:Ronald Lever

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President

Date:26 April 2018

Place:Sydney

The application for adjournment of the second hearing date fixed for the hearing of this matter on 26 March 2018 is refused.

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The Hon. Dennis Cowdroy OAM QC, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – request for adjournment of second interlocutory hearing – multiple requests for adjournment – application for adjournment refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 2A(b)

CASES

AON Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Bobolas v Waverley Council [2016] NSWCA 139
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46; (2013) 250 CLR 303

Sullivan v Department of Transport (1978) 20 ALR 323

REASONS FOR DECISION

The Hon. Dennis Cowdroy OAM QC, Deputy President

26 April 2018

1. On 21 February 2018, three days following the reservation of the decision in the substantive Freedom of Information application hearing in this matter, the applicant filed an Application for Recusal/Disqualification. The application included the applicant’s outline of submissions which extended to 20 pages (“the application”).

2. On 27 March 2018, being the adjourned hearing date fixed for the hearing of the application (the first date for hearing being 9 March 2018), the applicant applied for an adjournment. The adjournment application was made upon the basis that the applicant had had insufficient time to prepare his submissions, and needed further time to prepare them. The application was refused. The Tribunal sets out hereunder the reasons for the refusal to grant the adjournment application.

   Chronology of hearing arrangements

3. On, 21 February 2018, the applicant asked the Tribunal if arrangements could be made so that he could listen to the audio recordings of certain days of the hearing. The parties were advised, on 22 February 2018, that the application had been set down for hearing on 9 March 2018. Listing notices were forwarded to the parties on 23 February 2018 confirming the hearing date.

4. On 27 February 2018, the applicant was informed by the Tribunal that arrangements had been made to comply with his request, and on 28 February 2018, the Tribunal confirmed a suitable appointment for the listening of the audio recordings. That opportunity was availed of by the applicant on 1, 5, 9, 12 and 13 March 2018.

5. On 6 March 2018, the applicant foreshadowed that he would need an adjournment of at least a fortnight. The respondent objected to any adjournment.

6. When the matter came on before the Tribunal on 9 March 2018, the applicant explained that he needed to have more time to consider the transcript. Accordingly the Tribunal, against the objection of the respondent, adjourned the proceedings to date which the applicant said was convenient to him, namely 27 March 2018.

7. On 15 March 2018, the applicant requested that the Tribunal provide him with copies of the transcripts of six hearing days before the Tribunal commencing on 4 September 2017. The applicant was informed that it was not the policy of the Tribunal to provide copies of the transcript to any party.

8. On 20 March 2018, the applicant informed the Tribunal that he had made enquiries of Epiq Global, the Tribunal’s transcription provider, and that Epiq Global could provide transcripts, with the consent of the Tribunal, at a lower rate, described as a “copy rate”. On the same day, the Tribunal gave its consent.

9. On 23 March 2018, the applicant requested an adjournment of the hearing listed for 27 March 2018. The respondent opposed the adjournment.

10. On 26 March 2018, the applicant requested the Tribunal to provide him with a laptop and electronic versions of the transcripts for the hearing. The Tribunal did so for the 27 March 2018 hearing. On 27 March 2018, being the second proposed hearing date, the applicant claimed that he had insufficient time to prepare his claim. He stated that he needed to see the transcript in order to prepare his submissions, and gather other material, the nature of which was unspecified other than a reference to codes of conduct.

    FINDINGS

11. The Tribunal declined to grant the adjournment for the following reasons:

    (a)The applicant had provided voluminous submissions contained in his outline of submissions which were filed on 21 February 2018. The applicant was asked why such submissions were insufficient for his purpose. He responded that he did not rely upon them. Thereafter, however, he informed the Tribunal that he would rely upon them in part, without specifying which part.

    (b)The principal reason advanced by the applicant was that he needed the transcripts. The applicant had made no attempt to obtain copies of the transcripts until 15 March 2018 when he made his request to the Tribunal. However, the applicant had been informed in October 2016 that it was the Tribunal’s policy not to provide transcripts.

    (c)The applicant forwarded an email on 26 March 2018 to the Tribunal stating relevantly as follows:

    “in preparation for the hearing 27 March 2018, may I request the following;

    1. The laptop computer with transcripts for 4 September 2017, 27 November 2017, 19 – 20 December 2017 and 15 – 16 February 2018.

    2. It is my intention to hand up my statement 12 February 2018, as evidence in this recusal application and to make myself available for cross examination.”

    (d)On the same day, the Tribunal arranged for a laptop with access to the transcripts to be provided to the applicant on the day of the hearing.

    (e)Accordingly, at the hearing, the applicant had electronic access to the transcript days he requested.

    OBSERVATIONS 

12. In addition to the provision of the transcript, the applicant had the benefit of notes taken by a person assisting him throughout these proceedings. The applicant however, declined to make any effort to provide a reference to the particular portions of the transcript which were, he claimed, important to him. Nor did the applicant attempt to indicate what the specific passages related to. However, the applicant had been given access to, and had heard all the recordings for the days he nominated.

13. It is apparent from the chronology that the applicant had taken no steps to prepare himself for the hearing, on 9 March 2018, nor up to 15 March 2018.

14. The applicant had been informed, on 9 March 2018 that unless the proceedings were heard during the month of March 2018, the Tribunal could not be convened for several months. The applicant was told that such a delay would have been contrary to the obligations of the Tribunal contained in s 2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) which requires the Tribunal to presume the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

15. The Tribunal is also mindful that on the last day of the substantive hearing on 16 February 2018, the Tribunal specifically asked the applicant whether he had any complaint with the proceedings. The following exchange occurred:

    Deputy President: All right, well if you have got a complaint, Mr Lever, tell me what it is now and we’ll deal with it.

    Mr Lever: no, I’m not complaining, Deputy President I’m just simply saying that – –

    Deputy President: what do you want to say? As I’ve said before, I am not going to revisit your compensation claim.

    Mr Lever: I’m not asking you to, but if you’re going to accept, Comcare’s analysis that I wrote two years ago, which was done in a day or two, I’m asking you to also read the next, the up to date version which takes into account Comcare’s responses.

    PRINCIPLES

16. The Tribunal is mindful of the principle that a refusal to grant an adjournment can constitute a failure to give a party the opportunity of adequately presenting their case: see Sullivan v Department of Transport (1978) 20 ALR 323 per Deane J. The power to adjourn proceedings is to be exercised according to the principle set out by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 per French CJ, Kiefel, Bell, Gageler and Keane JJ at [51].

17. The Tribunal is also minded of the principles established in AON Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175, 214 at [102]. It has been recognised that wastage of costs and degree of delay is not of itself sufficient reason for refusing an appropriate adjournment application. However, the whole of the circumstances must be considered.

18. The Tribunal is mindful that the applicant is self-represented, as he has repeatedly reminded the Tribunal. Despite this fact, the unwillingness of the applicant to take any realistic steps to prepare his submissions, in addition to the written submissions he has provided; the failure to make arrangements, at an early stage, to listen to the audio transcript, of six hearing days, until days after the first adjournment was granted, does not entitle the applicant to an adjournment. Further, the inability of the applicant to make any submissions even when the transcript was made available to him at the hearing with a laptop supports the rejection of the adjournment application.

19. The Tribunal refers, by analogy, to the observations of the New South Wales Court of Appeal in Bobolas v Waverley Council [2016] NSWCA 139 where McColl JA said:

    245. The appellants frequently wrote on their documents and repeated orally in court that they were unrepresented litigants as if that should afford them different treatment in the proceedings to that accorded either to the Council or to represented litigants generally.

    246. There is no “special” duty of care owed to unrepresented litigants. Rather, to the extent there is an obligation, sometimes described as a “duty”, but not a “duty of care” it is framed in terms of the right to a fair trial.

    247. Courts have an overriding duty to ensure that a trial is fair, which entails ensuring that the trial is conducted fairly and in accordance with law. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented. However, the court’s duty is not solely to the unrepresented litigant. Rather, the obligation is to ensure a fair trial for all parties. While a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial, the application of that principle will vary depending upon the circumstances of the case. In particular, the duty of a trial judge does not extend to advising the accused how his or her right should be exercised, nor to giving judicial advice to, or conducting the case in behalf of, the unrepresented litigant. The judge must remain all times the impartial add you to of the matter, measured against the touchstone of fairness”.

20. The fact that one adjournment was granted to the applicant when he was not ready to proceed, and the fact that arrangements were made, as he requested at the adjourned hearing to provide him with the transcript demonstrates that every opportunity was given to the applicant to present his case. The Tribunal considers that a further adjournment, in the circumstances, is not warranted and refuses the application for adjournment.

    ORDERS

21. The application for adjournment of the second hearing date fixed for the hearing of this matter on 26 March 2018 is refused.

I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President

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Associate

Dated: 26 April 2018

Date of hearing:	27 March 2018
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services