TSOI v SAVRANSKY - [2004] FMCA 879

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TSOI v SAVRANSKY & ANOR

[2004] FMCA 879

PRACTICE AND PROCEDURE – HUMAN RIGHTS – Adjournment whilst applicant awaits decision of Legal Aid Commission on her appeal against refusal – where respondent has been subject of delay caused by applicant’s problems in obtaining legal representation – application of State Legal Aid legislation to Federal proceedings.

Legal Aid Commission Act 1979 (NSW)

Wilson v Alexander [2003] FCAFC 272
Dietrich v R (1992) 177 CLR 292

Applicant:

NATALIA TSOI

First Respondent:

IVAN SAVRANSKY

Second Respondent:

SHIPTRON PTY LTD
T/A ISBJ DENTURE CLINIC

File No:

SYG 2290 of 2003

Delivered on:

18 November 2004

Delivered at:

Sydney

Hearing date:

18 November 2004

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr E Costa

Counsel for the Respondent:

Mr David Thiering

ORDERS

The proceedings be adjourned for hearing at 10.15am on 15 March 2005.
Applicant to pay the respondents’ costs thrown away by this adjournment to be assessed pursuant to Schedule 1 of the Federal Magistrates Court Rules in default of agreement. In the even that parties are unable to agree on an assessment they may refer the matter to Federal Magistrate Raphael. This order will not come into effect until the end of the proceedings or further order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2290 of 2004

NATALIA TSOI

Applicant

And

IVAN SAVRANSKY

First Respondent

SHIPTRON PTY LTD T/A ISBJ DENTURE CLINIC

Second Respondent

REASONS FOR JUDGMENT

This matter has an unfortunate history. It was commenced by application filed in this Court on 28 October 2003. It concerns a claim by the applicant that she was sexually harassed by the respondent in December 2001, thus it is almost 3 years since the alleged unlawful act took place. The matter appears first to have come before the Court on 16 February 2004 when after a short hearing it was adjourned because the applicant did not appear. The matter appears to have come back to the Court on 27 April 2004 on a notice of motion filed by the respondents that the proceedings be dismissed.
Those orders were made but on or about 17 May the applicant filed a notice of motion asking for those orders to be vacated on the grounds that she was not served with the notice of motion. On 27 May I made orders vacating the dismissal and adjourned the matter for further mention on 9 August at 9.30. I interpose here the fact that on

16 February 2004 the Court had made a series of directions for the proceedings which culminated in a hearing scheduled for 15 June 2004.
There was a further directions hearing at which time orders were made concerning the filing of affidavits and a hearing date fixed for

23 November 2004.
I am also aware that during the course of the proceedings some attempts have been made to obtain pro bono legal assistance for the applicant and at some stage she was being advised by a solicitor under a grant of aid from the Legal Aid Commission.
At all times the respondent has been represented by Mr Thiering and has to my mind acted with enormous patience and forbearance in the face of very serious allegations and an applicant who, for reasons which may be due to her health but are no doubt substantially affected by her problems with the English language, has not proceeded to prosecute her case in a manner that I would consider to be satisfactory.
In reviewing the file a few days ago I saw that the situation appeared to be one in which I was faced with conflicting evidence as to what had occurred. But affidavits deposing to those matters have been filed by both parties. I was therefore prepared to proceed on 23 November and to hear both the applicant and the respondent, together with any other evidence that might be produced, and come to a decision in the case.
A few days ago a letter was written to the Court by Mr Costa, a solicitor who had been approached by the pro bone section of the Law Society of New South Wales to see if he could assist the applicant. Mr Costa kindly appeared today before me. He told me that the applicant had been represented in relation to this case by a firm of solicitors and also in relation to certain other matters which she is ventilating before the Health Care Complaints Commission and possibly some other organisation.
It would appear that the firm of solicitors declined to act for the applicant in connection with these proceedings before me, although they were prepared to continue to act for her in the other proceedings. Mr Costa told me today that the result of this decision was that there was no evidence on behalf of the applicant, apart from her affidavits, and that no attempt whatsoever had been made to contact any of her medical practitioners to whom she had allegedly complained about the matters alleged in the application.
He asked that I grant the applicant an adjournment so that her case could be properly prepared either by her existing solicitors or others.

I would say here that I'm not entirely sure of the accuracy of the statements made by Mr Costa, presumably on instructions, because I have in front of me some medical certificates from Centrelink and some doctor's notes together with a report from Dr Tatiana Grossman dated 12 May 2003.
Mr Costa produced to the Court a letter from the pro bono department of the Law Society addressed to the applicant dated 11 October 2004. The letter says in part:
“Peter McDougall from the Legal Aid Commission has informed me that he is awaiting the results of the inquiry regarding your complaint of the sexual assault incident before making a final decision to accept or refuse you a grant of legal aid.”
It is accepted by both Mr Costa and Mr Thiering that this application is actually an application by way of appeal from a previous refusal of Legal Aid. The parties have made inquiries and I am informed by Mr Costa that the situation within the Legal Aid Department is that they do not propose to proceed with this appeal until there are some results of the inquiry by the Health Care Complaints Commission. This places Mr Thiering and his client in a very difficult situation.
Section 57 of the Legal Aid Commission Act1979 (NSW) is in the following form:
57 Adjournment of certain proceedings
Where it appears to a court or tribunal, on any information before it:
(a) that a party to any proceedings before the court or tribunal:
(i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or
(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,
(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and
(c) that there are no special circumstances that prevent it from doing so,
the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.
Although I had previously taken the view that this Act does not apply to Federal proceedings, Wilson v Alexander [2003] FCAFC 272 indicates that my view is not be correct and that I am bound by that piece of legislation to give an adjournment, save in special circumstances.
However, it seems that the length of the adjournment to be granted is up to me and when considering what to do in a case like this I should take into account the reasons given by the Legal Aid authority for not proceeding with the appeal and the previous conduct of the case.
I have no idea how long the resolution of the complaint to the Health Care Complaints Commission will take but it may be a considerable time. In the meantime the respondent to these proceedings remains with serious allegations hanging over his head which he has at all times been prepared to defend. Through his solicitor the respondent has complied with the orders of the Court and has patiently accepted adjournments and delays instigated by the applicant who has been, regrettably, singularly unfortunate in her search for legal assistance.
The interests of justice require that the situation of both the applicant and the respondent be considered. They also require that cases be brought to finality. Obviously it would be in the applicant's best interests of she was represented. It would also be of assistance to the Court, but this is not a serious criminal trial of the type considered by the High Court in Dietrich v R (1992) 177 CLR 292.
In all these circumstances I will comply with the requirements of s.57 of the Legal Aid Commission Act 1979 and grant an adjournment but I will only do so for a limited time. If the applicant has not received legal aid by that time the case must proceed. I adjourn the matter to

15 March 2005 when it will be heard. The applicant is to pay the respondent's costs thrown away by this adjournment to be assessed pursuant to schedule 1 of the Federal Magistrate's Court rules in default of agreement. In the event that the parties are unable to agree on the assessment they may refer the matter to me but for the avoidance of doubt and in view of the application made by Mr Thiering, this order will not come into effect until the end of the proceedings or further order.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 25 November 2004