Wiggins v Department of Defence - NAVY (No 2) - [2006] FMCA 969

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WIGGINS v DEPARTMENT OF DEFENCE – NAVY (No 2)

[2006] FMCA 969

PRACTICE AND PROCEDURE – Human Rights – Adjournment of costs hearing – whether unavailability of senior counsel sufficient basis for adjournment.

Applicant:

KELLIE LOUISE WIGGINS

Respondent:

DEPARTMENT OF DEFENCE - NAVY

File number:

PEG170 of 2004

Judgment of:

McInnis FM

Hearing date:

20 June 2006

Delivered at:

Melbourne

Delivered on:

20 June 2006

REPRESENTATION

Counsel for the Applicant:

Mr D.B. Clough

Solicitors for the Applicant:

Christopher Bunnett

Counsel for the Respondent:

Mr M. Bromberg S.C.

Solicitors for the Respondent:

Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

PEG 170 of 2004

KELLIE LOUISE WIGGINS

Applicant

And

DEPARTMENT OF DEFENCE - NAVY

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this application the Court delivered a decision on 9 June 2006 in relation to claims by the applicant of unlawful discrimination allegedly arising under the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992. In delivering its decision on 9 June 2006 the Court then deferred the making of further orders, including costs orders, to another date.
The Court, in its decision, had indicated that it would make an appropriate declaration and order for damages together with costs after hearing submissions from counsel. I should add that when the Court refers to making an appropriate declaration it is inferred an appropriate declaration, if any.
The application was listed for hearing this day and was the subject of a notice of listing dated 16 June 2006. I am satisfied that notice of listing was forwarded to the parties on that date, that is on Friday, 16 June. Hence the notice was forwarded some seven days after the judgment of the Court was delivered.
The reason the Court didn’t proceed to hear submissions in relation to the orders sought and the question of costs was that the judgment delivered by the Court on 19 June 2006 comprised approximately 70 pages and it was thought at that stage that it would be the interests of both parties that they be given the opportunity to assess the judgment and consider the Court’s conclusion before being required to make submissions to the Court on the form of orders, including the question of costs.
The Court is aware that on Friday, 16 June 2006, some concern was expressed by those representing the applicant that senior counsel who conducted the trial may not be available to make submissions this day on the question of costs and other orders. At one point it was thought the matter could be listed on Monday, 19 June, at 9.30 am to accommodate the convenience of senior counsel for the applicant. That, for various reasons, appeared not to be the case and at one point it was understood that senior counsel had another commitment in another place.
Ultimately I requested that the matter be listed for hearing this day on the basis that at least it gave the parties a further opportunity of considering their respective positions, having of course had the advantage of receiving the judgment of the Court on 9 June 2006.
Counsel appearing for the applicant this day I note was junior counsel. throughout the trial. He has submitted that senior counsel will not be available until after 12 July 2006. He has further submitted that upon senior counsel’s return further time might be required for senior counsel to prepare material relevant in relation to the question of costs.
A specific reference has been made to senior counsel perhaps possessing knowledge of negotiations which may have occurred between senior counsel and counsel for the other side, which may be relevant to the question of costs, and specifically relevant to at least part of the application to be made by the applicant, namely an application for indemnity costs of the hearing.
Counsel for the applicant accordingly has sought that this application be adjourned to a date after 12 July 2006 so that senior counsel previously engaged may have the opportunity of preparing and then presenting submissions in relation to the orders including the costs orders. It is argued that there is some prejudice to the applicant by not having senior counsel available at least to provide what is submitted to be relevant information concerning negotiations which may have occurred between the parties through the trial on the question of costs.
Senior counsel for the respondent appears this day and opposes the application for an adjournment. It is submitted that the proceedings should be finalised so that both parties may then be able to assess their respective submissions and pursue, as they are entitled to pursue, the question of whether they wish to file any appeal from the Court’s decision, presumably including any decision made as a result of submissions in relation to costs.
During the course of the submissions made by both parties the Court raised with junior counsel for the applicant the proposition that where two counsel are employed on behalf of a party then it is presumed the junior counsel should have the capacity to undertake the conduct of part, or indeed all, of an application should senior counsel not be available.
It seems to me that that general proposition applies with greater force to the question of costs and consequential orders made after a judgment has been delivered in relation to the substantive issues agitated between the parties in circumstances particularly where that decision has been delivered some 11 days ago.
When the matter was called on this day junior counsel was not able to provide the Court with a minute of proposed orders sought. At the very least the Court expected there may be a minute of any declaration sought for and on behalf of the applicant and perhaps some indication of the costs order sought. Nevertheless it is not appropriate to conclude that this matter has not received adequate and appropriate consideration by those advising the applicant.
In my view the adjournment sought is unreasonable. It is unreasonable in the sense that it would further prolong the finalisation of this hearing which has already occupied significant Court time. I do not accept that an adjournment simply based upon the unavailability of senior counsel for one party should of itself provide any or any proper basis for an adjournment.
Further, I do not accept on the material currently before me that there is any or any significant prejudice which may be visited upon the applicant should junior counsel present today make submissions on behalf of the applicant in relation to costs and other orders. Any prejudice claimed to arise by the non-availability of senior counsel who was part of negotiations can be addressed during submissions and if at a later stage during the hearing I conclude that there is some prejudice then that can be cured by other orders.
At present, however, on the material before me I cannot see how that material is particularly relevant to the task to be undertaken by the Court in determining appropriate costs and other orders in this application. In my view it is important for Courts to proceed to finalise applications and to recognise and acknowledge that where two counsel are retained to appear on behalf of a party then the Court is entitled to expect that where one counsel only is available then that counsel should be able to present the application on behalf of his or her client in the appropriate professional manner.
In those circumstances for those reasons the application for adjournment is refused.

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

Associate:

Date: 20 June 2006