Tsoi v Savransky and Anor (No.2)
[2005] FMCA 195
•25 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TSOI v SAVRANSKY & ANOR (No.2) | [2005] FMCA 195 |
| HUMAN RIGHTS – Application for adjournment – obligation to take into consideration the position of respondent. |
| Sex Discrimination Act 1984 Tsoi v Savransky [2004] FMCA 879 |
| Applicant: | NATALIA TSOI |
| First Respondent: | IVAN SAVRANSKY |
| Second Respondent: | SHIPTRON PTY LTD T/A ISBJ DENTURE CLINIC |
| File Number: | SYG2290 of 2003 |
| Judgment of: | Raphael FM |
| Hearing Date: | 25 February 2005 |
| Date of Last Submission: | 25 February 2005 |
| Delivered at: | Sydney |
| Delivered on: | 25 February 2005 |
REPRESENTATION
| Counsel for the Applicant: | Ms T Evers |
| Counsel for the Respondent: | Mr D Thiering |
ORDERS
Application for adjournment dismissed.
Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2290 of 2003
| NATALIA TSOI |
Applicant
And
| IVAN SAVRANSKY |
First Respondent
| SHIPTRON PTY LTD T/A ISBJ DENTURE CLINIC |
Second Respondent
REASONS FOR JUDGMENT
There comes before me today an application by the applicant in certain proceedings under the Sex Discrimination Act 1984 for an adjournment of a case which is due to commence on Monday.
The history of this case is unfortunate. The proceedings were commenced by way of application filed on 28 October 2003. They relate to an incident which allegedly took place in December 2001. The matter, as was required under the legislation, was considered by the Human Rights and Equal Opportunity Commission, and the reference to that Commission was determined on 30 September 2003. Since the matter has been in this court there have been a number of requests for adjournments all of which were based upon the applicant's inability to obtain legal assistance. The applicant had applied for legal aid and her application was refused. She had appealed against that refusal. She had also sought pro bono assistance through the Law Society of New South Wales but they have declined to provide it on the grounds that she must have been refused legal aid before that occurs. She has managed to approach a number of independent legal practitioners some of whom have provided her with assistance but no one has been prepared to act as her advocate in the proceedings.
The case was due to be heard on 23 November 2004. But on 18 November 2004 a further application for an adjournment was made citing in support s.57 of the Legal Aid Commission Act 1979 (NSW).
I gave judgment in this matter and my judgment is reported as Tsoi v Savransky [2004] FMCA 879. I noted the unfortunate history of the case. At [15] I said:
[15] 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.
[16] “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.”
[17] “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. …”
Ms Evers who today appears, she says amicus but in reality pro bono, on behalf of the applicant and for whose assistance the court is grateful, has submitted that the resolution of the complaint to the Health Care Complaints Commission is shortly to occur and therefore further consideration of the grant of aid is likely to be made in the very near future. She submits in support of that argument a letter dated 17 February 2005 from the Health Care Complaints Commission which will be Exhibit 1 and an email from her secretary advising her of a conversation that the secretary had with a Mr Merrick of the HCCC. The email says:
“I spoke to John Merrick. He said he is awaiting legal opinion which he is hoping to have within 48 hours.”
It is now 48 hours since that email was sent. We have no information about the legal opinion. It is fair to say that even when Mr Merrick receives the legal opinion a decision will have to be taken as to whether or not the Health Care Complaints Commission will proceed with the complaint by this applicant against the respondent. There is therefore no certainty whatsoever that the matter will be resolved speedily or that legal aid will be granted.
I remain of the view which I expressed firmly in the judgment of 18 November 2004. It is unfortunate, but Ms Tsoi must now bring her case to court. Justice requires that Mr Savransky has a hearing if that is what Ms Tsoi demands. Whilst one can understand the attitude of the various people who Ms Tsoi has seen and sought legal assistance from (an apparent reluctance to become involved simply on her word against that of Mr Savransky) one would have hoped that perhaps more charity would have manifested itself. As it is, it has not. The case will proceed at 10.15 am on Monday, 28 February 2005.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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