Australian Competition & Consumer Commission v Refund Home Loans Pty Ltd ACN 106 212 300

REASONS FOR JUDGMENT 1 This is an application for an adjournment of a proceeding brought by the Australian Competition and Consumer Commission (the Commission) against a corporation, Refund Home Loans, and a Mr Ormond. Mr Ormond, on the pleadings at least, might be regarded as the directing mind and will of the corporate respondent, Refund Home Loans. 2 The case is one which, at present, is on the Fast Track list. The case has progressed in accordance with the practice and procedure and resultant directions which flow from that list. At present, it is due for trial on 15, 16 and 17 March. 3 After the close of the Court's normal sitting period last year, but prior to the end of December 2009, it came to the attention of the Respondents' solicitors that the Silk retained, and long retained, was not available to appear because of other commitments on the dates in March which I have mentioned. That was communicated promptly to the Applicant Commission's solicitors. Rightly enough, the Respondents took the view that the subject was not one which warranted a case being brought on for mention during the Summer but rather have caused it to be mentioned as soon as possible after the end of the Court's non-sitting period. 4 In the ordinary course of events, the convenience of counsel is not a factor of any particular weight in relation to the adjournment of a trial. Particularly that is so in light of the recognition, in terms of the allocation of scarce judicial resources, of case management evident in the Aon risk Services Australia v Australian National University (2009) 239 CLR 175 and also in amendments recently made to the Federal Court of Australia Act 1976 (Cth). 5 In this particular case, given its stage, there are costs, solicitor and own client costs on the part of the Respondents, which would necessarily be thrown away in the event that it became necessary to brief other senior counsel in light of a retention of the trial dates. The Commission's position is that, whilst it would prefer to retain those dates, it does not strenuously oppose an adjournment providing that a trial can nonetheless be held within the time frame envisaged in the Fast Track practice directions. A change of counsel at this stage of the proceedings would, in my experience, entail some difficulties for the individual respondent, in particular in terms of a rapport and confidence which has doubtless thus far developed as between him and the person who is to lead his and his company's response to the case brought by the Commission. 6 The Respondents are particularly anxious to resolve the case by mediation if possible. The Commission has, at present, a neutral position in relation to the utility of mediation. It acknowledges the role of mediation even in cases which have a public interest element but, understandably enough, reserves its position as to the particular utility of mediation in the circumstances of this case until it has seen the respondents' statements. I say "understandably enough" because the essence of the case brought by the Commission is whether particular statements alleged to have been made in the pleadings were misleading or deceptive - particular statements as to the Commission's approval and involvement in the corporate respondent's affairs. In that regard, it is evident from the defence that context is everything. 7 The particular and peculiar aspect of why it seems to me, quite exceptionally, that an adjournment is warranted is that it may very much assist the reaching of a view about the merits of a case in the context of mediation if counsel well familiar with it and, further, with whom a rapport has already been developed is able to be retained. That is not to say that a case must be referred to mediation, only that, given that it is a contingency and a contingency which must occur even before a trial in March. It is a factor which is relevant to the utility of mediation. 8 As it happens, there is not at present competition for trial dates relatively early in April. It seems to me, though, that a case which is on Fast Track ought not to retain at least the formal status of a Fast Track List case if it is to be adjourned without particular opposition on the basis of convenience of counsel. In this particular instance, that may be a matter of form rather than substance in the sense that the directions already made will not be varied. Particular Fast Track aspects of those directions have already been completed and the alternative trial date which I am able to offer is still within the timeframe envisaged in those Fast Track directions. Nonetheless, it seems to me important not to countenance retention of cases with formal Fast Track status in circumstances such as this. 9 The other matter raised is one already alluded to, which is whether there should be a referral now to mediation. I accept I have power, even in the face of opposition, to make such a referral. However, it seems to me that it would be premature and, indeed, not in the interests of justice to make such a referral order at present having regard to the very real importance of context and the present absence of statements from the Respondents which would permit a sensible, detached and objective assessment of merit on the part of those advising the Commission. The case is due for mention again in the ordinary course on 22 February 2010. That is time enough to consider whether there should be a referral to mediation. By then those statements will have been delivered.