Magistrates - Procedure - The hearing - Adjournment and remand - General principles - Proper exercise of the discretion - Application for adjournment refused.

Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625; Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, applied.

Hamilton v Littlejohn [2006] TASSC 109; James v Williams; Ex parte James [1967] Qd R 496, followed.

Judgment Number: [2007] TASSC 53

1 This is a motion to review an order made by a magistrate on 27 March 2007 dismissing one count of common assault and one count of trespass, contrary to the Police Offences Act 1935, ss35(1) and 14B(1), respectively.

2 The motion pleads five grounds for review, but four of them add up to the single proposition that the learned magistrate erred in the exercise of his discretion by refusing to grant an adjournment of the hearing of a complaint upon the request of the prosecutor. The remaining ground alleges a specific error by making an erroneous finding that the failure of a witness to answer her home telephone indicated either that the witness was deceased or not at home.

3 The complaint containing the charges was made on 13 September 2006. The first appearance date was shown to be 10 October 2006 but the defendant, the respondent to this motion to review, failed to appear on that day. His counsel was unable to offer a reason for this failure. The learned magistrate adjourned the hearing to 8 November 2006 and noted the prosecutor's application for the issue of a warrant for the defendant's arrest.

4 The defendant did appear on 8 November and by his counsel entered a plea of not guilty. There followed a discussion about the number of witnesses to be called and the estimated hearing time which was said to be about three hours. An order was made adjourning the proceedings to 27 March 2007 for hearing.

5 On that day, the defendant appeared and his counsel told the court that "the defence is in a position to proceed". The prosecutor applied for an adjournment. He said that he had spoken to the female complainant that morning, that she was ill, and that she should be at the surgery of a local doctor as he spoke. The prosecutor said that the complainant had "heart problems" and "a stress related illness" and that he had requested "a certificate". The court record showed that a witness summons for the complainant's attendance had been served.

6 Counsel for the defendant opposed the application for an adjournment. She said that her instructions were that the previous day the complainant had been seen carrying wood. Counsel said that she had not seen any medical certificate and asserted that that morning was the first contact that the prosecution had had with either the complainant or her son. She submitted that the complaint should be dismissed.

7 At that stage of proceedings, the defendant intervened and said that he was not sure if it was wood that he had seen the complainant carrying, but it was "a large box". He went on to add, "at the time when she had the original heart attack it was only found on the blood test, not the ECG. The ECG said there was no such thing to do with the heart attack ... and before I rang up and said that I wanted a doctor's certificate, you say 'no, get your butt to court, that's not going to fly' so I'm asking the same courtesy".

8 The learned magistrate did not respond to the defendant's intervention, but suggested that the prosecutor telephone the doctor's surgery to see if the complainant was there. The hearing adjourned and the prosecutor made his inquiries. On his return, he told the learned magistrate that the complainant had been in touch with the medical centre but there was no appointment available for her until that evening. He said that he had no mobile phone number for the complainant and no one answered the home telephone, although he had rung the number several times. The learned magistrate then observed that it did not sound as if the complainant's injuries were "terribly serious" and said:

"Just so I can cover it in case the matter goes to the Supreme Court, and some Judge decides that we shouldn't manage our list, can you indicate to me, at the present time, what were her injuries?"

9 That, and an earlier remark by the learned magistrate, makes it clear that he was referring to a judgment of mine in Hamilton v Littlejohn [2006] TASSC 109, in which an order was made setting aside an order of dismissal made by the same magistrate upon him refusing to adjourn a hearing at the request of the prosecutor.

10 The prosecutor told the learned magistrate that on the hearing of the complaint it would be alleged that the complainant suffered "physical injuries to the body and then a subsequent heart attack for want of a better expression". Counsel for the defendant then said that she had seen no medical evidence to support that proposition. Thereupon, the defendant rejoined the debate, saying, "the ECG didn't even show a heart attack". Somewhat contrapuntally, the learned magistrate reverted to Hamilton v Littlejohn (supra) saying:

"So it's very much like the other matter I had, where I'd even made an order that the things be delivered and they hadn't been complied with."

11 The material before me discloses that there were no further submissions and the learned magistrate proceeded to give reasons for refusing the application for an adjournment and making the impugned order of dismissal. The relevant parts of those reasons are as follows:

"It would seem that last evening the complainant has taken ill. It is submitted, without the benefit of a medical certificate, that she is currently suffering from heart problems, and from a stress related illness. One could only assume that a heart problem and a stress related illness would not just arise overnight, it be for some period of time.

Notwithstanding the fact that the complainant must have been aware, this matter was set for trial today; notwithstanding that she has had ample time to see a doctor about some stress related illness, it would seem that nothing has been done until an appointment has been made for this evening. One can only infer from that that her condition is not life threatening, if she has to wait until this evening to see her medical practitioner, and has not taken the other avenue of going to the local hospital and their emergency department.

I note also the police prosecutor has attempted to contact the complainant by phone to confirm her condition, but there was no response from her phone. One can only draw the inference therefore - there'd be two inferences: one, she is currently deceased laying on a floor, and was unable to get to the phone to answer it; or secondly, she is not at home.

There is little doubt, and I have said it before, and it may have been overturned by a Supreme Court, but my view is this, this Court has the right to in fact manage its own lists. There were matters set down for trial. With a large number of matters we deal with on a regular basis, one cannot just continually lose time because parties do not appear. And I address that both to defendants and to complainants. There's the obligation that the matter be dealt with expeditiously.

From November 'til now the delay is unconscionable from the point of view that it should be ready to proceed. There is no clear evidence as to any medical certificate or any medical condition, I therefore intend to refuse the adjournment."

12 Although not alleged as specific error, it is difficult to see the basis for the conclusion that "a heart problem and a stress related illness would not just arise overnight". The reference to the complainant having had "ample time to see a doctor about some stress related illness" clearly carries the implication that notwithstanding the ample time, the complainant had not consulted a medical practitioner prior to that morning and there is no basis for that inference. It is equally difficult to see the basis for the inference "that the [complainant's] condition is not life threatening, if she has to wait until this evening to see her medical practitioner, and has not taken the other avenue of going to the local hospital and their emergency department." There was no material to indicate where the complainant was that morning, and certainly no justification for concluding that she had not taken any other avenue for her illness, including going to the local hospital. It is easier to see the basis for the challenged, but relevantly insignificant, finding that because no one answered her home telephone, the complainant was either deceased lying on a floor and unable to get to the telephone, or not at home.

13 The learned magistrate was quite correct when he said that the Magistrates Court "has the right to in fact manage its own lists" but, of course, such management must be in accordance with the law. The law required him to determine an opposed application for an adjournment. The law required him to exercise a judicial discretion in accordance with settled principles. I set out those principles in Hamilton v Littlejohn at pars17 - 22:

"17 It is, of course, trite law that courts are reluctant to entertain appellate review of an order made in the exercise of the judicial discretion. It suffices to simply refer to Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627 and House v R [1936] HCA 40; (1936) 55 CLR 499. With respect to the exercise of the discretion to grant or refuse an application for an adjournment, the New South Wales Court of Appeal expressed the view in Cucu v District Court of New South Wales (1994) 73 A Crim R 240 at 246 that, 'It is rare that a court such as this - either in appeal or in judicial review - will disturb the decision to grant or refuse an adjournment'. However, it is clear that this is such a rare case and that error infected the exercise of the learned magistrate's discretion.

18 The principles which should govern appellate review of the exercise of a discretion to grant or refuse an adjournment, were stated in these terms by Brennan J (as he then was), Deane and McHugh JJ, in Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625 at 628 - 629:

'In Maxwell v Keun [1928] 1 KB 645, at 650, 657, 658, the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. (See, for example, Walker v Walker [1967] 1 WLR 327, at 330 ; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569; Bloch v Bloch [1981] HCA 56; (1981) 55 ALJR 701, at 703; [1981] HCA 56; 37 ALR 55, at 558-9). Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action Walker [1967] 1 WLR, at 330; Carryer (1969) 90 WN (Pt 1) (NSW), at 569.

In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties.'

19 At 631, their Honours added, 'It is true that it is only in extraordinary circumstances that the interests of justice will be served by a refusal of an adjournment in a case such as the present where the practical effect of the refusal is to terminate the proceedings'.

20 Those passages must be read in the light of two matters. First, the appellant Sali was in a financially embarrassed position and attempting to stave off proceedings for the sequestration of his estate. Second, in Queensland v J L Holdings Pty Ltd (1997) 189 146, Dawson, Gaudron and McHugh JJ, said at 154:

'It may be said at once that in the passage which we have cited from Sali v SPC Ltd [relating to case management] Toohey and Gaudron JJ are not to be taken as sanctioning any departure from the principles established in Cropper v Smith and accepted in Clough and Rogers v Frog. Sali v SPC Ltd was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.'

21 James v Williams; Ex parte James [1967] Qd R 496 was a case of appellate review of a refusal to grant an adjournment of the hearing of a complaint in circumstances very similar to the present matter, except that in James, the defendant sought an order that the case be dismissed when the prosecution was not ready to proceed. Hart J said, at 501 - 502:

'If a defendant who has been served with a summons to appear on a certain day attends at Court on that day ready to answer the complaint, and the complainant is not then ready to proceed, then, if nothing else appears, the prima facie order to be made would be to adjourn the hearing and to require the complainant to pay the expenses of the defendant - the costs thrown away. If justice can be done by adjourning the case and ordering payment of costs, there is no justification for dismissing the complaint where the bona fides of the complainant is not challenged.'

22 As Bowen LJ observed in Cropper v Smith (1884) 26 Ch D 700 at 710, 'Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy ...'."

14 The learned magistrate did not apply the law in this case, just as it was not applied in Hamilton v Littlejohn. He failed to exercise his discretion in accordance with settled principles. No previous application had been made for an adjournment. There was nothing in the material before the learned magistrate to suggest that the complainant was deliberately avoiding attendance at court to give evidence. All the material before the learned magistrate indicated that the complainant was ill. Although the learned magistrate and I have referred to "the complainant", in fact the complainant was Constable Bennett. I mention this because the learned magistrate seems to have assumed that the interests of the prosecution and those of the alleged victim of the offences were identical. They were not. He failed to consider the public interest in the charges, which, during the course of submissions, he described as serious allegations, proceeding to a hearing. Counsel for the defendant did not claim that the defendant would suffer any prejudice if the application for an adjournment was granted. No previous application for an adjournment had been sought by either party. The learned magistrate said that the court cannot "continually lose time because parties do not appear." There was no material to indicate that the court was continually losing time, there was certainly no material to indicate that prior to the application being made, those responsible for the prosecution and defence of this case had contributed to any loss of time and in any event, as I have said, the person who failed to appear was not a party to the complaint, but a witness.

15 The discretion miscarried and the order refusing to grant an adjournment should not have been made. The error led to the order of dismissal of the matters of complaint. That order will be set aside and a further order made that the complaint be heard by another magistrate.