Todhunter, J.A. v Commonwealth Director of Public Prosecutions

6 ~ 9 9.3

JUDGMENT NO. ........ ........ .. 1

IN THE FEDERAL COURT OF AUSTRALIA )

I

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 228 of 1993

1

GENERAL DIVISION 1

BETWEEN: JOHN ANTHONY TODHUNTER
Applicant

AND : COMMONWEALTH DIRECTOR OF

l G SEP 1993 PUBLIC PROSECUTIONS & ANOR

FEDERAL COURT OF First Respondent

AUSTRALIA
PRINCIPAL

REGISTRY DEREK PRICE

Second Respondent

27 July 1993

REASONS FOR JUDGMENT

LOCKHART J.

On 8 July this year, a judge of the Court specially fixed this matter for hearing to commence next week on Thursday, 5 August, on the basis that it would take more than one day but not more than two days to hear. Each party was expressly given leave by his Honour to apply on two days notice in the meantime.

It is obvious that his Honour fixed those dates, notwithstanding that he was informed at the time that it would inconvenience counsel for the applicant, because there were then no other dates in the foreseeable future that could be allocated by the Court to the hearing of this matter in view of the Court's heavy commitments. It is plain that his Honour had little

There is now a motion by the applicant to vacate that fixture on the basis that neither senior nor junior counsel

alternative but to list the matter when he did.
appearing for the applicant can appear for him on either of those
two days.

Discussion has revealed that 31 August and 1 September are dates that suit counsel for all parties. Had the position been on 8 July as it now is, I have no doubt that his Honour would have fixed the hearing for the dates for which I am about to fix the matter.

I vacate the fixture for next week. The matter will proceed

for hearing on 31 August next.

Costs of the motion will be costs in the proceeding.
I certify that this and the
preceding one (1) page are a true copy of the reasons for judgment her

Dated: 27 July 1993

Counsel for the Applicant P Byrne
M Anastasi
Solicitors for the Applicant : Greg Walsh & CO

Solicitors for the Respondents: Commonwealth Director of

Public Prosecutions

Date of Hearing 27 July 1993
Date of Judgment 27 July 1993

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of John Anthony Todhunter v Commonwealth Director of Public Prosecutions was heard by Lockhart J. The applicant, John Anthony Todhunter, sought to vacate the hearing dates that had been fixed by a previous judge, citing that neither his senior nor junior counsel could attend on the scheduled dates. The Commonwealth Director of Public Prosecutions was the first respondent, and Derek Price was the second respondent. The matter was initially set for a hearing on 5 August 1993, but due to unavailability of counsel, the applicant moved to reschedule the hearing to a later date.

The legal issue before the court was whether the previously scheduled hearing dates should be vacated due to the unavailability of counsel for the applicant, and if so, what alternative dates would be appropriate. The court had to consider the impact of the unavailability of counsel on the scheduling of the hearing and whether the original judge would have rescheduled the hearing if he had been aware of the current situation.

Lockhart J found that the original judge had fixed the hearing dates despite knowing it would inconvenience counsel for the applicant due to the court's heavy commitments and lack of alternative dates. Lockhart J determined that had the current situation been known at the time, the original judge would have fixed the hearing for the dates suggested by the applicant. Therefore, Lockhart J vacated the fixture for the originally scheduled dates and fixed the matter for hearing on 31 August 1993. The costs of the motion were to be costs in the proceeding.

No further orders were made by the court in this instance.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

l G SEP 1993	PUBLIC PROSECUTIONS & ANOR
FEDERAL COURT OF	First Respondent

Counsel for the Applicant	P Byrne
M Anastasi
Solicitors for the Applicant :	Greg Walsh & CO

Date of Hearing	27 July 1993
Date of Judgment	27 July 1993