Zeltner v Deputy Registrar of the Supreme Court

[2022] ACTCA 34

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Zeltner v Deputy Registrar of the Supreme Court

Citation:

[2022] ACTCA 34

Hearing Date:

4 May 2022

DecisionDate:

4 May 2022

Before:

McCallum CJ

Decision:

1)    Dismiss the application.

2)   Confirm the listing of the hearing of the appeal for 2.15 pm on 19 May 2022.

Catchwords:

PRACTICE AND PROCEDURE — Directions — Application to vacate listing due to unavailability of counsel — Where no attempt made to find alternative counsel

Parties:

C Zeltner ( Appellant)

Deputy Registrar of the Supreme Court of the ACT ( First Respondent)

C Jones (Second Respondent)

Representation:

Counsel

J Masters ( Applicant)

T Giugni ( Second Respondent)

Solicitors

Marjason & Marjason Solicitors ( Applicant)

ACT Government Solicitors ( Second Respondent)

File Number:

AC 58 of 2021

Decision under appeal: 

Court/Tribunal:             Supreme Court

Before:  Elkaim J

Date of Decision:          21 October 2021

Case Title:  Zeltner v Deputy Registrar of the Supreme Court of the ACT

Citation: [2021] ACTSC 276

McCallum CJ:

1. This is an appeal from a decision of Elkaim J in judicial review proceedings concerning search warrants issued by the Deputy Registrar of the Court at the request of the informant in criminal proceedings in the Magistrates Court. The appeal raises some interesting questions of law and counsel briefed to appear for the appellant has indicated that he has accepted instructions on a “no win, no fee” basis. Counsel's potential unavailability for the dates proposed for the appeal was flagged when the matter was listed for hearing, but the matter was listed nonetheless.

1. The appellant now seeks to vacate the listing, primarily on the basis that counsel may be unavailable for the scheduled date. Following the callover on 9 February 2022, the parties were notified on 18 February 2022 of the listing for 19 May 2022. As noted by the second respondent, who opposes the application to vacate, the appellant was granted liberty to apply to vacate any hearing date on seven days' notice on the basis of the unavailability of her counsel. The present application was not filed until 22 April 2022.

1. The respondent notes that, in the application to vacate, it is for the appellant to satisfy the Court that the hearing should be vacated. Factors militating against vacating the date are, as recorded in the respondent's submissions, the delay in bringing the present application; the delay that vacating the date will occasion to the hearing of the underlying criminal proceedings in the Magistrates Court; the absence of any evidence of any steps taken to find alternative counsel; and the premise on which matters are listed for hearing which is that the Court does not ordinarily have regard to the convenience of counsel. As to that last consideration, that is, of course, an aspirational approach to which there must from time to time be exceptions, and it is recognised that the fact that counsel are appearing on a pro bono or speculative basis is one relevant consideration.

1. I have taken that into account; however, it seems to me having regard to the relatively discrete nature of the issues raised by the appeal and the fact that there are still two weeks until the date of the appeal that it is not out of the question that alternative counsel could be persuaded to take the matter on, on the same basis as counsel currently briefed for the appellant. The difficulty is that those enquiries have never been made. In all the circumstances, I am not prepared to vacate the hearing date. I dismiss the application and confirm the listing of the hearing of the appeal for 2.15 pm on 19 May 2022.

1. I note that a separate concern has been raised on behalf of the appellant that in counsel's assessment the appeal will take four hours. That was not the indication on the form provided by the parties at the time of the callover.  However, for abundance of caution I will make enquiries of the judges to whom the matter has been allocated as to whether they are prepared to start sitting at 2:00pm and potentially to sit on beyond 4:00pm.

I certify that the preceding five [5] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: 7 July 2022

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Amendments

7 July 2022     Note that the judgment originally published as “Zeltner v Deputy Registrar of the Supreme Court [2022] ACTCA 30” has been amended to “Zeltner v Deputy Registrar of the Supreme Court (No 2) [2022] ACTCA 30”