Adjournment
12 The general principle is that once a trial date is set, the trial should proceed. It was pointed out by the Full Court of the Supreme Court of South Australia in Dawson v Deputy Commissioner of Taxation (1984) 56 ALR 367 at 370:
It is essential to the orderly conduct of the business of the court that trial dates be adhered to. When a case comes before the trial judge on the date fixed for trial, the parties are entitled to come to court with an assurance that the trial will commence and will proceed, so far as possible, without interruption, to its conclusion. The court, which is in this respect the protector of the public interest, is also entitled to that assurance.
(I also refer to another decision of that court Sarunic Brothers Pty Ltd v AFG Insurances Ltd, unreported Full Court Supreme Court of South Australia, 12 March 1984.)
13 However as pointed out by Dawson, Gaudron and McHugh JJ in The State of Queensland v JL Holdings Pty Ltd (1996) 189 CLR 146 at 154:
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 for a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
14 In the submissions put to me yesterday it seems that, at least from the view point of the applicants, a considerable volume of material has been put to them days before trial. I note the claim of the respondents that most of the documents to which reference is made in the schedule provided by the applicants to me in court yesterday were disclosed. The statements delivered during that time were made in response to the allegations of fraud made by the applicants. However, in view of the timing of delivery of this documentation and its considerable length (in particular the lengthy signed affidavit of the second applicant filed and served 12 July 2006 which in itself, including the annexures, totals 1685 pages) it appears - at least from their submissions - very difficult for the applicants to ascertain whether the documentation has been previously disclosed. I am not persuaded on the facts before me that the documents which have been delivered ought not to cause the applicants difficulty as urged by the respondents.
15 The position before me as of yesterday is that there appears to be a large volume of evidence which the applicant has either not had a proper opportunity to read and if necessary, respond to, or, possibly, evidence which is still not before the applicant.
16 During the course of yesterday morning there was considerable contention between the parties as to who had caused delay disclosing evidence. Both parties claim that each other had delayed. I make no finding as to this issue at this stage.
17 The respondents have also pointed to the fact that the application was stayed by the Full Court of the Federal Court pending payment of security for costs, and have submitted that they were entitled to stop preparing for hearing until they had been informed by the court that proper security had been provided, which occurred on 28 June 2006. It is certainly the situation that the substantive application was stayed pending payment of security for costs. However whether this means that either party was entitled to temporarily abandon preparation for the hearing, in view of the possibility that the applicants did not pay security for costs is a different issue. The trial date had been set. Ceasing preparation pending payment would be, at best, a risky strategy. The applicants did pay security for costs, as ordered by the court. I am not persuaded that there is particular merit in the respondents' claims that they were entitled to cease activity pending that payment, if the result is that preparation for and disclosure of evidence for the substantive trial, and the hearing of the trial itself, be jeopardised.
18 I note that the respondents appear to have incurred expense in relation to witnesses from interstate and overseas. However, I am not persuaded that the respondents are prejudiced in that the applicants would not be in a position to satisfy a costs order in the event that the respondents were successful at trial. Again, I note that the applicants have paid security for costs as directed by the court. No evidence was produced yesterday which would indicate an inability of the applicants to pay further costs in the event of the success of the respondents at the hearing and a costs order being made against the applicants.
19 Finally, the respondents have submitted that serious allegations of fraud have hung over the first and second respondents for some time, and it is important to deal with these allegations expeditiously. This admission was strongly resisted by the applicants, on the basis that the claim is that the conduct of the respondents has breached the Act, and fraud is not pleaded. As Kirby J said in J & L Holdings at 170, there is a natural desire of most litigants to be freed, as quickly as possible, from the anxiety, distraction and disruption which litigation causes. However, the prejudice to the first and second respondents as described by Counsel in this case before me appears to be, with respect, unsubstantiated at this stage.
20 Adjourning the hearing of this matter is undesirable and will clearly result in inconvenience to both parties. Rescheduling a two-week trial at a date to suit the parties and the court in the near future will prove a difficult challenge. I note that the timetable as contained in consent orders made by me on 3 April 2006 was not complied with after 30 May 2006. These directions included an order that the parties attend mediation by 7 July 2006. Failure to comply with this direction is perhaps itself, telling. It is unfortunate that the parties did not approach the Court to seek a variation of the timetable before this week. As it is, both parties have undoubtedly incurred considerable expense and inconvenience.
21 However, in my view on the facts presented to me yesterday, on balance it would be unjust to refuse the adjournment sought by the applicants.
22 In my view, the appropriate orders are as follows:
- The trial is adjourned until Friday 21 July 2006 at 10.15 am for further directions.
- Costs to be reserved.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.