WILSON v Croatian Club

[2003] FMCA 324

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILSON v CROATIAN CLUB & ANOR [2003] FMCA 324

HUMAN RIGHTS – PRACTICE AND PROCEDURE – Adjournment – whether an adjournment should be granted where orders have not been complied with – where affidavit indicates no regret or excuse for failure – where new hearing day may be many months away.

Applicant: JO-ANNE WILSON

First Respondent:	CROATIAN CLUB JADRAN HAJDUK LTD
Second Respondent:	ROGER STANTON

File No: SZ 41 of 2003

Delivered on: 29 July 2003

Delivered at: Sydney

Hearing date: 29 July 2003

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Ms A Healey

Solicitors for the Applicant: Marsdens

Counsel for the First Respondent: Mr A Canceri

Solicitors for the First Respondent: J A Buda & Associates

For the Second Respondent: No appearance

ORDERS

1. Application dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 41 of 2003

JO-ANNE PAMELA WILSON

Applicant

And

CROATIAN CLUB JADRAN HAJDUK LTD

First Respondent

ROGER STANTON

Second Respondent

REASONS FOR JUDGMENT

1. This matter was commenced by way of an application dated 17 January 2003.  The application was served upon the first respondent which is a registered club on 26 January 2003.  The matter was given a first return date on 18 February 2003 but that first return date appears to have been adjourned until 1 April.  On 1 April counsel appeared on behalf of the first respondent and the applicant was also legally represented. 

2. The court made 9 orders including an order for liberty to apply.  Order number 8 set the matter down for hearing at 11.30 am today, 28 July 2003.  The other orders related to the filing of a response and further affidavits.  Neither respondent complied with any of the orders made on 1 April 2003.  It is possible that the second respondent did not comply because he was not served personally. 

3. No attempt was made by the respondent through his legal advisers to restore this matter and insofar as the court was aware it was proceeding.  It has been set down for a day and a half.  When the matter was called this morning I received from Ms Healey, who appears on behalf of the applicant, an affidavit of service and another affidavit from her instructing solicitor relating to the hearing on 1 April and attaching a number of letters which he wrote to the solicitors for the first respondent on 6 June, 18 July and 25 July.

4. The respondent appears by Mr Canceri.  His is not an enviable position.  He produced a facsimile document entitled an “affidavit” sworn by a man who claims to be the general manager of the club involved.  The affidavit deposes to the fact that on 21 March 2003 all the previous board members of the club were voted out of office and a new board was voted in.  Mr Canceri tells me the club is in disarray or was in disarray. But that was obvious before the first directions hearing.  Indeed, so far as the management of the club is concerned by its directors, the problems that might have existed in the club were cured by the election of a new board.  The affidavit indicates that the second respondent has been terminated from the club and another witness "has not left the club in a harmonious manner".

5. Mr Canceri asks on behalf of his client for an adjournment.  He offers to pay costs.  There is nothing in the affidavit which indicates what occurred between 1 April and 28 July.  There is nothing in the affidavit which indicates why the respondent did not restore the matter to the court under the liberty to apply provisions.  There is nothing in the affidavit which indicates what steps will now be taken to bring the matter on for hearing.  There is no draft response annexed to the affidavit.

6. It may well be that because of the name given to this court by the Parliament practitioners consider that its jurisdiction and methods of working, fullness of lists and pressures upon judicial officers are similar to those that are found in the Local Court of New South Wales.  Such problems make the granting of adjournments something which can occur with reasonable ease and possibly with much relief there. But this is not such a court.  This court has been invested with much of the jurisdiction of the Federal Court of Australia.  It has made a determined effort to adopt procedures which will ensure a speedy, informal and cheap hearing of cases and in the main those procedures have been appreciated by the profession and have been complied with. The court operates a docket system. The result being that the court enjoys an enviable reputation for dealing with matters, particularly matters of this type, in a speedy and satisfactory manner.

7. The court is busy.  I am advised by my associate that if you wish to bring a claim in this court for review of the decisions of either the Migration or the Refugee Review Tribunal you will have to wait until August 2004.  The court makes every effort to ensure that cases in other branches of the Federal jurisdiction are given timely hearing dates. But if I granted an adjournment in this case it would be very difficult to provide the day and a half required before the end of this year.  I see no reason why the applicant should have to accept this delay.  I see absolutely nothing in the conduct of the respondent which would indicate any regret for what has occurred nor any reasonable excuse and I do not propose to grant the adjournment requested. I will, however, stand the matter down until tomorrow morning so that the Respondent can prepare for the hearing.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: