Niya v Felav Pty Ltd
[2010] FMCA 125
•17 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NIYA v FELAV PTY LTD | [2010] FMCA 125 |
| PRACTICE AND PROCEDURE – Refusal of adjournment for the convenience of counsel one month before date fixed for hearing 2 months prior. |
| Haset Sali v SPC Ltd (1993) HCA 47, (1993) 116 ALR 625 Robert Giarrusso and Transport Union Workers of Australia v Ampol Petroleum (Vic) Pty Ltd [1994] IRCA 123 Automotive, Food, Metals Engineering, Printing and Kindred Industries Union of Workers [2005] WASCA 157 Dordev v Cowan & Anor [2006] VSCA 254 R v Ngo [2001] NSWSC 887 |
| Applicant: | MOHAMMED TAGHI FATEMI NIYA |
| Respondent: | FELAV PTY LTD T/AS M & P & M NANOVICH ACN 009 297 527 |
| File Number: | PEG 208 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 17 February 2010 |
| Date of Last Submission: | 17 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 17 February 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Downings Legal |
| Solicitors for the Respondent: | Paiker and Overmeire |
ORDERS
Application for adjournment dismissed.
Respondent’s time for filing affidavits extended until 1 March 2010.
Applicant to pay the respondent’s costs assessed in the sum of $300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PEG 208 of 2009
| MOHAMMED TAGHI FATEMI NIYA |
Applicant
And
| FELAV PTY LTD T/AS M & P & M NANOVICH ACN 009 297 527 |
Respondent
REASONS FOR JUDGMENT
On 15 December 2009 this case was set down for a special fixture to be heard on 15 March and 16 March 2010. At the time the case was set down the parties were given a timetable for the filing of evidence and the completion of other interlocutory matters. It was not suggested at that time that the date would be inconvenient to anybody or that the necessary filing of evidence could not be undertaken. The hearing is to be conducted in Perth by myself, a Federal Magistrate from Sydney, because the Federal Magistrate based in Perth has a conflict in relation to the case and has rightly excused himself from it.
On or about 15 February 2010 the court received a fax from the applicant’s solicitors confirming a telephone conversation that had taken place on 11 February advising that the applicant’s solicitors wished to vacate the hearing date on the grounds of the unavailability of counsel. I arranged for a special directions hearing to take place on 17 February.
I have no evidence as to why counsel is unavailable other than what has been told to me by Ms Pereira, a solicitor, from the bar table. No explanation has been given as to whether or not that date was inconvenient on 8 December, or whether the inconvenience is a recent one. Apparently, she says, counsel has other cases on that day.
Adjourning cases that have been set down for a fixed date should only be done where the court has been persuaded that there are proper reasons for so doing. The unavailability of counsel for unexplained reasons is not one of those reasons. In Haset Sali v SPC Ltd (1993) HCA 47, (1993) 116 ALR 625, the High Court considered an application for an adjournment stating in [11]:
“In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties.”
And at [13] the court noted that Marks J in the Full Court said that:
“The only basis of the adjournment was the inability on the part of the appellant to obtain the services of senior counsel. He said that it was not apparent on the face of the judgment of the trial judge that the appeal would require lengthy preparation to present the argument.”
And further that:
“It was a longstanding practice of the Court that, while it would do its best to meet the convenience of counsel, it would not delay access to the courts by other litigants by putting off hearings in the way the Court was asked to do in this case.”
And at [23] the High Court said:
“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 the court may have regard. Because these considerations are singularly within the knowledge of the court to which an application for an adjournment is made, there is an added reason why this Court should not interfere with a decision made on such an application.
And at [24]:
“Having regard to these matters, it is clear that the Full Court’s decision to refuse an adjournment for two weeks was correct.”
In Robert Giarrusso and Transport Union Workers of Australia v Ampol Petroleum (Vic) Pty Ltd [1994] IRCA 123, that court said, in relation to an application for an adjournment:
“Having said that, the court looks at the grounds for adjournment which, in descending order of importance, are (1) discovery and access to documents said to be crucial to the applicant’s case, (2) availability of a psychologist to give expert evidence, (3) unavailability of the barrister initially briefed by the applicants or, it is said, unavailability of appropriately experienced alternative counsel. The third ground is given least weight by the applicants. It is rejected immediately. Counsel took a brief and then became unavailable. There are other fish in the sea even at this late stage.”
In Automotive, Food, Metals Engineering, Printing and Kindred Industries Union of Workers [2005] WASCA 157, the court said:
“While having counsel of choice is obviously important to a defendant who is in the position of these defendants, I can’t see that the point in issue, being an interlocutory point, albeit to do with the pleading of a particular defence to the claim, is so important that one counsel and only one counsel shall deal with the matter. I am not satisfied that the requirements of an adjournment are made out and the matter ought to proceed today.”
In Dordev v Cowan & Anor [2006] VSCA 254 in the Victorian Court of Appeal, Maxwell P said at [27]:
“The first is that the hearing today was conducted following an unsuccessful application for adjournment made yesterday by Mr Sala as junior counsel for the appellant. Very properly, he sought an adjournment on the basis that, unexpectedly senior counsel was ill and his client’s preference, understandably enough, was that senior counsel should be available to present the argument. In rejecting the adjournment application we referred to the well-established tradition of the Victorian bar that junior counsel should be able to step in at short notice if senior counsel becomes unavailable.”
Finally, in R v Ngo [2001] NSWSC 887, the Supreme Court of New South Wales, in a very serious matter involving a murder trial and a decision on sentence, said this at [5]:
“I accept that the Crown may be making such a submission, that it is a most serious matter, that the prisoner’s position is most serious and that he should have available to him the best available counsel. The fact of the matter is that Mr Hoenig is not available. It is not as though the refusal of the adjournment will result in the prisoner being without adequate or sufficient representation …
And at [6]:
“I am appalled that Mr Hoenig should accept a brief for a matter which had been specifically fixed when he knew at the time he would not be available. The court lists are jammed and counsel do not have the right to juggle them or attempt to juggle them to suit their own convenience. If I consider there was a risk of injustice to the prisoner by refusing the adjournment I would grant it, but I can see no such risk.”
Nothing has been said to me today that would indicate that there is any risk to the applicants if I do not grant this adjournment. There is now one month between today’s date and the date of the hearing. There is adequate time to obtain the services of other counsel. I have no doubt whatsoever that there are sufficiently competent counsel in Perth who can undertake this case. I do not propose to grant the adjournment.
Mr Paiker, on behalf of the respondent, has requested further time to file his affidavits. He indicates to me that the affidavits from the applicant were late. I have read those affidavits. They are clearly important and I am happy to grant Mr Paiker some extra time. I order that the applicant pay the respondent’s costs which I assess in the sum of $300.00.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 24 February 2010
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