FEDERAL COURT OF AUSTRALIA
O’Donoghue v Australian Information Commissioner [2012] FCA 1219
Citation: O’Donoghue v Australian Information Commissioner [2012] FCA 1219 Parties: VINCENT THOMAS O'DONOGHUE v AUSTRALIAN INFORMATION COMMISSIONER, DEPARTMENT OF THE ATTORNEY-GENERAL, THE ATTORNEY-GENERAL and MINISTER FOR JUSTICE File number: WAD 200 of 2012 Judge: MCKERRACHER J Date of judgment: 5 November 2012 Catchwords: PRACTICE AND PROCEDURE – application for a four month adjournment of a hearing – relevance of applicant’s status as a self-represented and incarcerated litigant Cases cited: O’Donoghue v Australian InformationCommissioner (No 2) [2012] FCA 1152
Tinkler v Elliott [2012] EWCA Civ 1289Date of hearing: Determined on the papers Date of last submissions: 15 October 2012 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 22 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: A Ladhams Counsel for the Second, Third and Fourth Respondents: A Gerrard Solicitor for the Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 200 of 2012
BETWEEN: VINCENT THOMAS O'DONOGHUE
ApplicantAND: AUSTRALIAN INFORMATION COMMISSIONER
First RespondentDEPARTMENT OF THE ATTORNEY-GENERAL
Second RespondentTHE ATTORNEY-GENERAL
Third RespondentMINISTER FOR JUSTICE
Fourth Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
5 NOVEMBER 2012
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The applicant file and serve any affidavits in support of the application by 14 November 2012.
2. The respondents file and serve any affidavits in response by 28 November 2012.
3. The application be listed for hearing on 20 December 2012 at 10.15am.
4. The applicant file and serve an outline of submissions 14 days prior to the hearing.
5. The respondents file and serve an outline of submissions 7 days prior to the hearing.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 200 of 2012
BETWEEN: VINCENT THOMAS O'DONOGHUE
ApplicantAND: AUSTRALIAN INFORMATION COMMISSIONER
First RespondentDEPARTMENT OF THE ATTORNEY-GENERAL
Second RespondentTHE ATTORNEY-GENERAL
Third RespondentMINISTER FOR JUSTICE
Fourth Respondent
JUDGE:
MCKERRACHER J
DATE:
5 NOVEMBER 2012
PLACE:
PERTH
REASONS FOR JUDGMENT
INTRODUCTION
I have before me an application by Mr Vincent O’Donoghue (the applicant) for a four month adjournment of this proceeding. The applicant is self-represented and incarcerated. His adjournment application is opposed by the respondents, who are represented by the Australian Government Solicitor. The proceeding is currently programmed for a final hearing on 6 December 2012. For the reasons that follow, I am minded to exercise my discretion to grant a brief two week adjournment but not for the length of time that the applicant seeks.
PROCEDURAL HISTORY
At the first directions hearing on 11 September 2012, I made the following programming orders:
1.The applicant file and serve any affidavits in support of the application by 30 October 2012.
2.The respondents file and serve any affidavits in response by 14 November 2012.
3.The application be listed for hearing on 6…
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- Case
- [2012] FCA 1219
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court needed to decide was whether the applicant's status as a self-represented and incarcerated litigant warranted a significant extension of the hearing date. The court considered the overarching purpose of the civil practice and procedure provisions, which aim to facilitate the just resolution of disputes efficiently and quickly. The court also acknowledged the public interest in the timely resolution of cases and the rights of the respondents to a prompt resolution. The applicant’s circumstances, including limited access to computer facilities, were noted but did not automatically entitle him to a lengthy adjournment. The court observed that the applicant had been timely in correspondence and capable of preparing submissions within the given timeframe.
After considering the submissions and the principles of procedural fairness, the court declined the request for a four-month adjournment. Instead, the court set specific deadlines for filing affidavits and outlines of submissions, and fixed the hearing date for 20 December 2012. The court emphasised the importance of adhering to the overarching purpose of facilitating just, quick, and efficient dispute resolution, while also considering the applicant's capacity to manage the proceedings within the stipulated timeframe.
Orders
Orders of the court
1. The applicant file and serve any affidavits in support of the application by 14 November 2012.
2. The respondents file and serve any affidavits in response by 28 November 2012.
3. The application be listed for hearing on 20 December 2012 at 10.15am.
4. The applicant file and serve an outline of submissions 14 days prior to the hearing.
5. The respondents file and serve an outline of submissions 7 days prior to the hearing.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The applicant seeks the following relief:1.An order setting aside the decision of the first respondent dated 20 July 2012.2.A declaration that the first, second and third respondents have individually and or collectively breached their respective duties and obligations under the Freedom of Information Act1982 (Cth).3.Such further and other Orders as the Court may deem fit.4. Costs and damages. CONSIDERATION OF ADJOURNMENT APPLICATION The granting of an adjournment is discretionary in nature. Section 37M(1) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) provides that the object and purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes (a) according to law and (b) as quickly, inexpensively and efficiently as possible. Section 37N of the FCA Act provides that parties to a civil proceeding before the Court must conduct the proceeding in a manner that is consistent with the overarching purpose. While the applicant stresses that application raises ‘many important issues’, I accept the respondents’ submission that the application for judicial review is relatively straightforward in nature. Moreover the applicant has also not put on any formal evidence to support the granting of such a lengthy adjournment. As Gilmour J noted in disallowing a similar adjournment application in O’Donoghue v Australian InformationCommissioner (No 2) [2012] FCA 1152 (at [9]):… there is a very real public interest in the timely disposition of matters before this Court, where the respondents… are also entitled to a timely resolution of the case. It is not to be forgotten that properly understood, it is Mr O’Donoghue who is the prosecutor in this matter. He is the applicant. He ought to be taken to know the nature of his case and he will have had some three months since filing his application for judicial review to prepare for the hearing on the date which I have fixed. I also note a recent decision of the Court of Appeal of England and Wales, Tinkler v Elliott [2012] EWCA Civ 1289 in which Kay LJ, with whom Munby and Lewison LJJ agreed, in the context of an application by a self-represented litigant to set aside a default judgment, noted: I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person… Similarly in this case, while the applicant is self-represented and incarcerated, with limited access to computer facilities, these facts do not automatically entitle him to a lengthy four month adjournment of the final hearing. On the basis of the applicant’s timely correspondence with the Court in this proceeding, I have formed the view that the applicant is abundantly capable of preparing submissions and affidavit material in support of his application and filing them by facsimile. While I note that the applicant’s communications appear to have been prepared on a word processor, the applicant also has the option of preparing submissions and affidavits by hand.