MASLAUKAS v Qld Nursing Council (No.2)

[2008] FMCA 236

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MASLAUKAS v QLD NURSING COUNCIL (No.2) [2008] FMCA 236

PRACTICE & PROCEDURE – HUMAN RIGHTS – Adjournment application – legal aid application – appeal to Legal Aid Review Committee.

Disability Discrimination Act 1992 (Cth) ss.5, 19
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss.46PO
Judiciary Act1903 (Cth) s.79
Legal Aid Commission Act 1979 (NSW) ss.47, 56, 57

Tsoi v Savransky [2004] FMCA 879
Wilson v Alexander (2003) 135 FCR 273
Woodlands and Others v Permanent Trustee Company Ltd and Others (1996) 68 FCR 213

Applicant: DARINA JOSEPHINE MASLAUKAS

Respondent: QUEENSLAND NURSING COUNCIL

File Number: SYG 3151 of 2007

Judgment of: Barnes FM

Hearing date: 20 February 2008

Delivered at: Sydney

Delivered on: 20 February 2008

REPRESENTATION

Solicitor for the Applicant: G. A. Guthrie

Counsel for the Respondent: Ms. P. Thew

Solicitors for the Respondent: Rodgers Barnes and Green

Solicitor for the Amicus Curiae: Ms. M. Barbaro

ORDERS

1. The matter be adjourned and listed for directions before me at 9.30am on Wednesday, 16 April 2008. 

2. In the event that the present solicitor for the applicant is still the solicitor for the applicant on Wednesday, 16 April 2008 he may participate in the directions hearing by way of telephone link to the number [phone].  

3. The costs of today be reserved. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3151 of 2007

DARINA JOSEPHINE MASLAUKAS

Applicant

And

QUEENSLAND NURSING COUNCIL

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant alleges unlawful discrimination by the respondent. She seeks to apply out of time under s.46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The respondent seeks summary dismissal of her application. These applications were listed for hearing today.

2. The applicant now seeks an adjournment of these proceedings.  I am told by the present solicitor for the applicant that his instructions are limited to seeking such an adjournment.  The applicant has applied for legal aid.  Apparently a solicitor was appointed in a limited capacity in December 2007 to prepare documents and to take steps to protect the applicant's interests until there was a further decision on her legal aid.  However on 15 January 2008 the Legal Aid Commission declined her application. 

3. I am told that the applicant has appealed in relation to this decision. I take this to be a reference to an appeal in accordance with s.56 of the Legal Aid Commission Act 1979 (NSW) to a Legal Aid Review Committee. The Review Committee will next meet to consider that application on or about 15 March 2008. The applicant seeks an adjournment until at least after mid March, by which time her position and whether she has legal representation will be clarified.

4. The applicant also notified the Court by way of facsimile letter that she had to be in Brisbane for a medical appointment today. She advised that she had an application before the Legal Aid Review Committee. Thr respondent opposes the application for adjournment, while also recognising that the applicant is not present today and hence that any cross-examination cannot proceed. Counsel for the respondent suggested that as she and the legal representative for the Commissioner were present the Court ought to proceed to hear submissions on the legal issues in relation to the applicant’s application for leave to extend time under s.46PO(2) of the HEROC Act and the respondent’s application for summary dismissal, albeit it was acknowledged that insofar as the applicant’s evidence may need to be tested (in relation for example, to any explanation for the delay in commencing these proceedings) the hearing would have to be adjourned to another date.  

5. It was also acknowledged that the applicant would have to incur the expense of obtaining a transcript of the proceedings to respond to any oral submissions for the respondent.  That course was opposed by the solicitor for the applicant on the basis of the cost. 

6. I consider, however, that the critical issue in relation to the adjournment application is the operation of s.57 of the Legal Aid Commission Act 1979 which I raised with the parties. Under that section where it appears to a Court on any information before it that a party to proceedings has appealed under s.56 to a Legal Aid Review Committee, that the appeal has not been determined, that the appeal is bona fide and not frivolous or vexatious or intended to improperly hinder or delay the conduct of proceedings, and that there are “no special circumstances that prevent it from doing so” the Court “shall adjourn the proceedings” to an appropriate date on such terms and conditions as it thinks fit.

7. I have had regard to what was said by the Full Court of the Federal Court in Wilson v Alexander (2003) 135 FCR 273. While there was previously some debate as to whether such a New South Wales legislative provision applied in Federal Courts and proceedings under Federal law (see Woodlands and Others v Permanent Trustee Company Ltd and Others (1996) 68 FCR 213) it is now clear that the Court is bound by that legislation to adjourn the proceedings if the requirements of s.57 are met save in special circumstances. (See s.79 of the Judiciary Act1903 (Cth) and Wilson v Alexander at [23] to [28] where their Honours concluded that a Judge of the Federal Court had erred in failing to assess an application for an adjournment on the basis that s.57 applied. Also see Tsoi v Savransky [2004] FMCA 879 at [13] to the same effect in relation to proceedings in this Court).

8. I do not consider that there are special circumstances that prevent the Court from adjourning. The fact that the respondent and presumably the Commissioner are in a position to address the Court today is not such as to constitute special circumstances under s.47.

9. In any event I consider that it would be inappropriate to proceed to hear some submissions in the manner proposed by the respondent particularly in circumstances where there are no submissions before the Court from the applicant in relation either to her leave application or in response to the summary dismissal application (which is understandable given the status of her legal aid application).  Further, it is not appropriate to begin to determine the summary dismissal application before a consideration of the applicant’s leave application.

10. In all of the circumstances and bearing in mind the application of s.57 to the proceedings in this Court and the absence of special circumstances within that section, I consider that it is necessary for the Court to adjourn the proceedings. Clearly the adjournment needs to be to an appropriate date after the Legal Aid Committee has met and any decision on legal aid has been acted upon.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  7 March 2008