McKenzie v Department of Urban Services

[2001] FCA 451

FEDERAL COURT OF AUSTRALIA

McKenzie v Department of Urban Services
[2001] FCA 451

CHRISTINE McKENZIE v DEPARTMENT OF URBAN SERVICES and THE CANBERRA HOSPITAL
A 12 OF 2001

GYLES J
CANBERRA
23 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 12 OF 2001

BETWEEN:

CHRISTINE McKENZIE
APPLICANT

AND:

DEPARTMENT OF URBAN SERVICES
FIRST RESPONDENT

THE CANBERRA HOSPITAL
SECOND RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

23 MARCH 2001

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:

1.          The application filed on 22 March 2001 for leave to appeal is dismissed.

2.The application filed on 22 March 2001 for a stay of the proceedings is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 12 OF 2001

BETWEEN:

CHRISTINE McKENZIE
APPLICANT

AND:

DEPARTMENT OF URBAN SERVICES
FIRST RESPONDENT

THE CANBERRA HOSPITAL
SECOND RESPONDENT

JUDGE:	GYLES J
DATE:	23 MARCH 2001
PLACE:	CANBERRA

REASONS FOR JUDGMENT (EX TEMPORE)

1. This is an application for leave to appeal from a decision of learned Magistrate Raphael on 21 March 2001 whereby an application for an adjournment of certain proceedings which are listed for hearing before him to commence on 26 March 2001 was dismissed.  The application for leave and an application for a stay were filed in this Court late yesterday afternoon.  Because of the urgency of the matter I agreed to sit this morning to consider the applications and I am pleased to say that the respondents cooperated in that and have attended before me by counsel.

2. The affidavit filed in this Court in support of the applications filed on 22 March 2001 is quite brief and the substance of it was that the applicant wished a four week adjournment to allow adequate time to instruct a solicitor and for the solicitor to prepare the case, she herself not having the skill to do so.  She has supplemented that affidavit by an affidavit sworn on 23 March 2001 in which she has given some account of the steps she has taken to seek to obtain legal advice. 

3. There is no record before me as to precisely what took place before the Magistrate.  It was, I am informed, a telephone hearing which dealt not only with the application for adjournment but with consequential directions in relation to the hearing.  The respondents have tendered two documents which they say were before the Magistrate.  The first is the respondents’ statement of issues and the second is an affidavit of the solicitor for the respondents (affidavit of Richard Maning sworn 21 March 2001).  It is apparent from that material that the matter has been set down for hearing for next week for a considerable period of time.

4. I do not have evidence as to what was said by the Magistrate.  I invited counsel for the respondents to give a version of what took place for agreement or otherwise.  In the event it was not agreed therefore I cannot have regard to it.  As I have said, there is no formal record of what took place although I do have the orders which were made on that occasion, the first order of which was the refusal of the application for an adjournment.

5. So the position that I am in is this.  I know there is a matter listed for next week.  I know that it relates to disability discrimination.  I know it has been fixed for hearing for some time.  I know that the applicant recently dispensed with the services of her solicitor in circumstances which I have no full knowledge of, although she does give an explanation for that.  I know from the material before the Magistrate that the respondents were saying that there were at least two reasons for not adjourning the matter.  The first was that they had incurred considerable expense in preparing for the hearing, and that their counsel would not be available after next week for some considerable time, and the second was that, in effect, finality was being sought.

6. It is not clear to me that the applicant here had evidence before the Magistrate as to the likelihood that she would be able to obtain legal representation if the matter were adjourned for the period to which she refers.  It would not by any means follow that that would be the case.  I do not know what her means are.  I do not know what steps, if any, she has taken to obtain legal assistance from any of the various sources that might be available.  Neither do I know precisely what factors the Magistrate took into account in refusing the adjournment.

7. In these circumstances there are great difficulties in the path of the applicant in obtaining leave to appeal at this point in the case.  The decision whether to grant or refuse an adjournment is a matter of practice and procedure which is within the discretion of the judicial officer in control of the case.  It is true that the exercise of such discretion is not beyond scrutiny by a court if the principles which are applicable have not been applied, but they are principles relating to the exercise of discretion.  There is nothing before me from which I can conclude there would even be an arguable case of a miscarriage of the discretion in this matter. 

8. I am conscious of the fact that the applicant is unrepresented and that this has arisen late and at a time when her evidence on this application is plainly deficient.  However, the matter has been fixed for hearing for some considerable time and the fact that this has arisen at this time is not any making of the respondents.  If leave is granted to appeal there will then be the necessity to assemble a bench, whether it be one or three, to hear the appeal and because of the practicalities involved, that will have to be next week and that would amount to a de facto adjournment of the case.  This would be an undesirable result. 

9. It would of course be possible, I suppose, to assemble a bench urgently whether, as I say, it be one or three, and put back the hearing until that matter was disposed of.  That is not something that I would do lightly without some proper arguable basis to suggest that the Magistrate's discretion has miscarried.  I am also influenced by the fact that, if there has been a denial of natural justice, in effect by a miscarried discretion, in the refusal of the adjournment, it seems to me that that would be a ground of appeal available to the applicant if she loses her case.  If she wins her case, of course, it becomes quite irrelevant: she has won.  If she loses her case then it seems to me that, according to the normal principles, it would be appropriate at that point to raise the issue of a miscarried interlocutory ruling. 

10. Whether that be so or not I must deal with this matter on the basis of the material before me, and I can find, as I have said, no arguable basis upon which it could be said the Magistrate's discretion has miscarried.  It is obvious that in a matter of this sort a self-represented applicant is at a disadvantage.  It is also obvious that there are factors related to the finality of litigation and prejudice to the other side in costs which cannot be repaired, or may not be able to be repaired, which require balancing, and different people would balance those considerations in different ways. 

11. Furthermore, I take into account the fact that the learned Magistrate remains in control of the proceedings.  There is nothing to prevent a further application for adjournment being made on a proper basis if that basis arises or does exist.  I am not suggesting that course ought be taken, but he will retain control of the proceedings, and if there is real prejudice occasioned to the applicant which could not have been repaired by diligence on her part then I am sure that the Magistrate would be very conscious of the obligation to ensure that a self-represented person is not unduly disadvantaged in the prosecution of the case.

12. So under the circumstances that I have explained, I dismiss the application for leave to appeal.  It follows that the application for a stay is also dismissed.  As I have said, because these applications are in a sense interlocutory, arising out of an interlocutory hearing, they do not, as I see it, provide a barrier to this Court considering, on a properly constituted occasion, any genuine grievance which the applicant can show by evidence she has. The orders are that each application is dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             23 April 2001

The Applicant was self represented
Counsel for the Respondents:	Ms L Donohoe
Solicitor for the Respondents:	Australian Government Solicitor (ACT)
Date of Hearing:	23 March 2001
Date of Judgment:	23 March 2001