Searle, B.A. v Keayes, P.

[1994] FCA 971

JUDGMENT NO. . .W.- . 97 Id ".2L

CATCHWORDS

PRACTICE AHD PROCEDURE - adjournment - application for

adjournment and vacation of hearing - matter part heard - litigant in person who subsequently briefed counsel -

principles.

GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710

R v Greer (1992) 62 A Crim R 442

Sal1 v SPC Ltd & Anor (1993) 116 ALR 625

Squire v Rodgers (1979) 39 FLR 106

Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379

Lenilamar Pty Limited v AGC (Advances ) Ltd (1990) 27 FCR 388

BROlWYH Allls SEARLE V PETER KEAYES k ORS

HO Ma 309 of 1994

Tamberlin J

Sydney

21 November 1994

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 309 of 1994

QENERAL DIVISION )

BETWEEN

BRONWYN ANN SEARLE

Applicant

AND :

PETER KEAYES

First Respondent

RICIUUU) KEAYES

Second Respondent

BRISALEBE AG LIMITED

(ACN 060 401 827)

Thlrd Respondent

WSB (No 15) PTY LIMITED

(ACN 055 949 016)

Fifth Respondent

WSB (No 17) PTY LIMITED

(ACN 058 901 170)

Sixth Respondent

CORAM :	TAMBERLIN J
PLACE :	SYDNEY
DATED :	21 November 1994

Application has been made this morning by Counsel appearing for the first and sixth respondents for the hearing of this matter which has been set down for the whole five days of this week, to be vacated and for an adjournment of the proceedings t0.a date to be fixed by the Court.

The grounds of the application are set out in an affidavit of the first respondent filed in Court this morning.

The matter is part heard before me having been the subject a previous hearing over 5 days in late September thls year. The matter was set down at a directions hearing on 25 July 1994 to commence on 26 September 1994 with an estimate of two weeks for hearing.

In the first week of the hearing, the first respondent appeared for himself and the sixth respondent and conducted the case. The first respondent is an accountant by profession and has been in practice for some years. The case involves claims for declarations, injunctions and other orders by the applicant in respect of a meat tenderness detection process in relation to which she claims to have been an inventor.

The applicant's case is well advanced. She has called four witnesses. Each of these is from interstate. They have already been cross-examined by the first respondent. There is one further witness to be called by the applicant, who is also from interstate.

When the matter came on for hearing the first respondent was unable to obtain legal representation ahd undertook the presentation of the case himself, including cross-examination. He has cross-examined the four witnesses called so far.

- 3 -

The matter was unable to proceed beyond the first five days for reasons unconnected with the parties.

There has now been an adjournment of 7 weeks since the last hearing during which the first respondent has undertaken a number of tasks and a considerable amount of work in relation to preparation for the resumed hearing.

In GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 713, 715-717 (C\A NSW) it is pointed out that the discretion of a judge to grant or refuse an adjournment is an exercise of a purely discretionary power. It arises under the Rules of Court and also under the inherent power of the Court to do justice between the parties. The Court must address the question of the prejudice to the parties which might be occasioned by the granting of the application or the refusal of the application. In addition, it is now well settled that the Court is entitled to weigh in the balance the pressure caused by the increase in litigation and the consequent necessity that in the public interest legal business should be conducted efficiently. In other words, a Judge can take into account as a significant factor in the exercise of discretion matters of general import such as the state of the Court list and the fulfilment of the reasonable expectations of the litigants. See also R v Greer (1992) 62 A Crim R 442 where

- 4 -

further reference is made to the entitlement of Courts to take

into account case management considerations.

In Sali v SPC Ltd & Anor (1993) 116 ALR 625 at 629, 636 the

High Court reiterated the entitlement of a judge of a busy court to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the

parties. See also Deane J in Squire v Rodgers (1979) 39 FLR

106 at 113-114; Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 387, 391-392, and Lenijamar Pty Limited v AGC (Advances) Ltd (1990) 27 FCR 388.

In Sali Brennan, Deane and McHugh JJ pointed out at 629 that

what might be perceived as an inlustice to a party when considered only in the context of an action between parties may not be so when considered in a context whlch includes the claims of other litigants and the public interest in achieving the most efficient use of court resources. See also

the judgment of Toohey and Gaudron JJ at 636.

The affidavit of the first respondent filed this morning sets out the grounds for the application.

The first respondent states that he has been without legal advice since mid-September 1994 when a firm of solicitors was

- 5 -

retained by him. That retainer was terminated because the first respondent could not pay them. He could not afford to pay lawyers to act for him in the matter.

It is common ground between the parties that the first respondent will be unable to pay the costs, in any event, thrown away by the applicant if the hearing set down for the five days of this week is vacated hence the award of costs cannot, in this case, cure any disadvantage to the applicant. This in my view is a most important consideration.

The first respondent says that in early September 1994 he went to the Legal Aid Commission and because the matter was a commercial matter he was told he was ineligible for legal aid. That position has not changed.

He says that on Tuesday 15 November 1994 he became aware of the New South Wales Bar Association pro bono scheme. He discussed the matter with a representative of the Association on 16 November. On 18 November 1994 he saw two counsel who gave him certain advice and who appeared on the adjournment application this morning.

Paragraph 9 of the affidavit sets out the contents of certain advice received by the first respondent. It includes the need for counsel to familiarise themselves with transcript and documents. In this respect the first respondent has had the benefit of a seven week adjournment in which to digest this

- 6 -

material. The applicant polnts out that there has been the advantage of a weekend over which such documents could be considered by counsel and it is also pointed out that two counsel are presently briefed by the first respondent.

The second matter raised is that the affidavits prepared by the first respondent suggest they were in poor form and not always directed to matters at issue. The applicant points out that until mid-September 1994 the first respondent had the benefit of a solicitor in relation to the preparation of affidavits and that, pursuant to directions by Beaumont J, affidavits were to be filed by 5 September 1994.

The third matter is that the credit of the deponents of affidavits is an important issue and that the transcripts of cross-examination by the first respondent have to be carefully examined to consider whether application to the court should be made to recall them for further cross-examination.

The witnesses called so far have been cross-examined by the first respondent, in some instances in some detail. The applicant submits that it would be unfair and unjust to enable counsel to come in after cross-examination has been closed and to re-open the cross-examination. There is force in this submission. Moreover the significant fact that the witnesses are interstate and their convenience is unknown is also instanced as a prejudice to the applicant.

- 7 -

A further ground raised is that the first respondent has received advice from counsel that he should make a formal application to the Legal Aid Commission for legal aid and should inquire about the possibility of obtaining the services of a pro bono solicitor.

As to the first matter, the applicant points out that the Legal Aid Commission has indicated that the proceedings are commercial in nature and is not prepared to give legal aid. There is no indication as to whether a pro bono solicitor may be made available or not. It is pointed out by the first respondent that counsel's involvement in the proceedings would be greatly aided with the assistance and involvement of a solicitor.

In a case where two counsel are presently available and the matter of a pro bono solicitor could be investigated further, I do not see any significant force in this ground.

The first respondent is instructing the two present counsel directly. It is asserted by the first respondent that they would be unable to do justice to his case if it proceeded on 21 November 1994, which is today, for the ensuing week.

Furthermore, it is said there are some documents produced on subpoena which were returnable on 16 November 1994 and were not produced until 21 November 1994. This, in itself, is, in my view, not a ground to vacate the hearing date and no doubt

- 8 -

these documents could be considered over the space of a few hours as often happens in the course of litigation. There is no explanation as to why the subpoena was not issued until 9 November 1994, some weeks after the adjournment of the previous hearing.

The first respondent says that the hearing of the matter in September caused him great stress and no doubt that is so. The first respondent has also prepared a list of tasks he has undertaken since that adjournment and I am satisfied that he has put in considerable work in preparing for the continued hearing of the proceedings.

This is in substance a commercial case in which the first respondent is a man of some business experience and acumen and is professionally qualified. That is not of course to say that

he is endowed with any particular legal skills.

As well as considering any possible disadvantages to the first respondent, the Court must be careful to welgh in the balance any disadvantages of a significant nature to the applicant.

In this matter I consider that the fact that costs could not be met by the first respondent, if there were to be an adjournment, is a relevant and weighty factor. Furthermore, I consider that the reasonable expectation of the applicant is

- 9 -

that the proceedings would continue this week and no doubt arrangements have been made to enable that to be done. It must not be ignored that litigation does impose stress and anxiety on both parties of a not inconsiderable nature.

In addition, the affidavit of the first respondent suggests that there may be an application to recall the applicant's witnesses for further cross-examination. If this were to occur there would be severe, and in my opinion unfair, disadvantage to the applicant which could not be remedied in any way by way of an order for costs.

Furthermore, the first respondent has given no satisfactory explanation as to the delay in getting legal representation apart from the fact that he first became aware of the Bar Association's pro bono scheme last week. No detail is given as to any inquiries or investigation by the first respondent nor as to why it was only 6 days ago that he first became aware of this scheme.

In the present circumstances I also consider that the principle set out in Sali's case as to the effect of granting the present adjournment is a most important one. This Court is a busy Court with a tight-knit list of commitments on the part of its judges. The Court is anxious for cases to be heard as promptly as possible but in many instances cases run over the predicted timespan and this can disrupt the listing and case management system in place. Vacation of hearings

- l0 -

necessarily entails substantial increases in delays and in some cases displacement of other matters with legitimate claims to be heard on dates carefully fixed in advance. It can also lead to wastage of Court time and resources. Competing claims to hearing time by other litigants in the list must be weighed as a matter of public interest.

If the present application were successful and this week of hearing vacated the matter would have to go over for at least several months in the present state of the Court's list. This result is undesirable especially in a case where credit is a central issue and in many instances unaided recollections of detailed conversations which took place over a year ago are of critical significance. In these circumstances further delay is clearly to be avoided in the interests of both parties.

In summary, I am not persuaded that any of the considerations set out in the affidavit of the first respondent either taken alone or cumulatively justify the granting of the application applied for when balanced against the reasonable legitimate interests of the applicant and the public.

On the contrary,I consider that the considerations of costs; the impact on the Court's list; the reasonable expectations of the applicant and the clear preludice to the applicant, require the exercise of my discretion against grantlng the

application applied for.

Accordingly, I dismiss the application for an ad~ournment in this matter with costs.

I cer t i fy that t h i s and

the preceding ten (10)

pages are a true copy of the

Reasons for Judgment herein of

h i s Honour Mr Justice Tadaerlin.

Associate :

Date :

21 November 1994

Counsel for Applicant :

Mr T K Tobin QC

Mr G M McGrath

Solicitor for Applicant :

Aitken & Magney

Counsel for First and

Mr J M Gorrick

Sixth Respodents :

MS M T Bateman

Date of Hearing :

21 November 1994

Date Judgment Delivered :

21 November 1994