FEDERAL COURT OF AUSTRALIA
Spencer v Commonwealth of Australia [2014] FCA 1117
Citation: Spencer v Commonwealth [2014] FCA 1117 Parties: PETER JAMES SPENCER v COMMONWEALTH OF AUSTRALIA and STATE OF NEW SOUTH WALES File number: ACD 24 of 2007 Judge: MORTIMER J Date of judgment: 17 October 2014 Catchwords: PRACTICE AND PROCEDURE – Application for adjournment of trial – principles relevant to exercise of discretion – whether other accommodations might be made – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 31A, 37M
Federal Court Rules 2011 (Cth) rr 4.05, 4.12
Cases cited: Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242; [2010] HCA 3
Sali v SPC Ltd (1993) 116 ALR 625
Spencer v Commonwealth (2009) 174 FCR 398; [2009] FCAFC 38
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Spencer v Commonwealth (2012) 206 FCR 309; [2012] FCAFC 169
Spencer v Commonwealth (No 2) [2008] FCA 1378
Spencer v Commonwealth(No 3) [2012] FCA 637
Spencer v Commonwealth (No 4) [2012] FCA 1142
Spencer v Commonwealth [2008] FCA 1256
Spencer v Commonwealth [2009] HCATrans 126
Spencer v Commonwealth [2010] HCATrans 55Date of hearing: 16 October 2014 Date of last submissions: 16 October 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 60 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr C Lenehan Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr J Kirk SC with Ms A Rao Solicitor for the Second Respondent: Crown Solicitor (NSW)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
ACD 24 of 2007
BETWEEN: PETER JAMES SPENCER
ApplicantAND: COMMONWEALTH OF AUSTRALIA
First RespondentSTATE OF NEW SOUTH WALES
Second Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
17 OCTOBER 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The applicant’s interlocutory application, filed with the Court on 10 October 2014, is dismissed.
2.On or before 24 October 2014, the applicant file and serve a notice of address for service.
3.The applicant have leave to have a person sitting at the bar table with him to assist him during any pre-trial hearings and during the trial.
4.Paragraph 8 of the orders of Gleeson J dated 22 May 2014 be vacated.
5.Subject to compliance with the directions made today in respect of an agreed tender bundle, on or before 12 November 2014, the first respondent prepare, file and serve electronic copies of a chronological, paginated Court Book.
6.The applicant must be served with one hard copy of the Court Book.
7.Paragraph 5 of the orders of Gleeson J dated 22 May 2014 be varied, so that the applicant is to file and serve his evidence in reply on or before 13 November 2014. This evidence is to be filed and served in the form of…
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- Spencer v Commonwealth [2014] FCA 1117
- Case
- [2014] FCA 1117
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CaseChat Overview and Summary
The primary legal issue before the court was whether the adjournment should be granted based on the applicant's need for additional time to secure legal representation and adequately prepare for the trial. The court noted that if the adjournment were granted, it would not be available to hear the proceeding until the second half of 2015, disrupting the court's caseload and leading to a change of docket judge, which the applicant had specifically complained about. Furthermore, the applicant had terminated the retainer of his legal representatives and provided no evidence of securing new representation by the trial date. The court concluded that the applicant, while self-represented, was not submitting that he was incapable of running the trial himself but rather sought accommodation to ensure a fair opportunity to present his case.
The court, after considering the principles governing the exercise of its discretion, dismissed the application for an adjournment. The decision was based on the applicant's failure to demonstrate a reasonable possibility of securing new legal representation by the trial date and the detrimental impact an adjournment would have on the court's efficient disposal of its caseload. The court also highlighted that the overarching purpose of the civil practice and procedure provisions was to facilitate the just resolution of disputes according to law, as quickly, inexpensively, and efficiently as possible. The court provided various directions to ensure the applicant could adequately prepare for the trial and participate in the proceeding, including allowing a person to assist him during pre-trial hearings and the trial itself, and setting specific deadlines for filing and serving various documents.
In summary, the court dismissed the application for an adjournment, emphasising the need to balance the applicant's right to a fair trial with the overarching objectives of the civil practice and procedure provisions. The court provided detailed directions to assist the applicant in preparing for and participating in the trial, while ensuring the efficient use of judicial resources and the timely resolution of disputes.
Orders
Orders of the court
1. The applicant’s interlocutory application, filed with the Court on 10 October 2014, is dismissed.
2. On or before 24 October 2014, the applicant file and serve a notice of address for service.
3. The applicant have leave to have a person sitting at the bar table with him to assist him during any pre-trial hearings and during the trial.
4. Paragraph 8 of the orders of Gleeson J dated 22 May 2014 be vacated.
5. Subject to compliance with the directions made today in respect of an agreed tender bundle, on or before 12 November 2014, the first respondent prepare, file and serve electronic copies of a chronological, paginated Court Book.
6. The applicant must be served with one hard copy of the Court Book.
7. Paragraph 5 of the orders of Gleeson J dated 22 May 2014 be varied, so that the applicant is to file and serve his evidence in reply on or before 13 November 2014. This evidence is to be filed and served in the form of a supplementary Court Book.
8. Liberty is reserved to the applicant to apply for leave to adduce any reply evidence he has not been able to file by 13 November 2014 in oral form from the relevant witness during the trial.
9. Paragraph 9 of the orders of Gleeson J dated 22 May 2014 be varied, so that the applicant is to file and serve his written outline of submissions on or before 13 November 2014.
10. Paragraph 10 of the orders of Gleeson J dated 22 May 2014 be varied, so that the respondents are to file and serve their written outlines of submissions on or before 20 November 2014.
11. Any requests for leave to issue subpoenas for witnesses at trial are to be filed by 10 November 2014.
12. The applicant is prohibited from printing, copying or distributing the trial transcript made available to him in accordance with paragraph 8 of the Court’s directions made on 17 October 2014.
13. The applicant is to return the trial transcript made available to him in accordance with the Court’s directions after the conclusion of final submissions in this proceeding, at a date to be fixed by the Court.
14. The respondents’ costs of the interlocutory application are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
If an adjournment were to be granted, I could not hear the proceeding until the second half of 2015, and late into the second half. Other Sydney judges may be available in the first half but that means another change of docket judge and a loss of what familiarity has been gained with the matter. The lack of continuity is, as I have noted above, a specific complaint made by Mr Spencer. CONSIDERATION Mr Spencer’s evidence was unequivocal that he had terminated the retainer of his solicitors and counsel. I proceed on the basis he is currently self-represented. It was also clear from his evidence that, if the trial were to proceed on 24 November 2014, he would be self-represented at trial. He did not suggest there was any possibility, let alone a reasonable one, that he would secure funding for a new “legal team” before that date. One of the principal reasons he sought the adjournment was to allow time to raise and source funds in order to find and retain new legal representatives. Therefore my consideration of the adjournment application is based upon the assumption that, if the adjournment is refused, Mr Spencer will have to conduct the trial himself. What I take from most of Mr Spencer’s evidence and submissions is that he is concerned to have a fair opportunity to present his case. He is not submitting he is entirely incapable of running the trial himself. Nor is he submitting he is incapable of running the trial for three weeks starting on 24 November 2014. Rather, he is submitting that some accommodation needs to be made if that is to occur. Understandably, he has felt overwhelmed at the prospect of what has to be done, now the reality of having terminated the retainer of his lawyers a month before trial is upon him. My impression of Mr Spencer is that he is an intelligent man, who is capable of acting responsibly and sensibly in the conduct of this proceeding, while retaining his obvious conviction about the correctness of his cause. In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction. That overarching purpose is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible: see s 37M(1) of the Federal Court Act. That overarching purpose encompasses the following objectives, which must be taken into account in determining how the grant or refusal of an adjournment promotes that purpose (see s 37M(2)):(a) the just determination of all proceedings before the Court;(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;(c) the efficient disposal of the Court’s overall caseload;(d) the disposal of all proceedings in a timely manner;(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.