Fazio v Centrelink [2008] FMCA 594

1. The Court is prepared to deal with the matter on the basis of the affidavits which have been faxed to the Court and to treat them as if they were properly filed for the purposes of the adjournment application. As indicated to Counsel for the Respondent at the outset of the hearing, the Court does not propose to dismiss this application for default of appearance by the Applicant. The bases for the adjournment are set out initially in the First Affidavit,[1] and they are:

1. the Applicant's medical condition; 2. the Applicant's engagement in Supreme Court litigation, and the impact of that in relation to his medical condition;

1. a request for further documents from Centrelink;

1. the fact that he is self-represented; and 2. that he feels that he has been bombarded by the Respondent's solicitors in relation to the summary dismissal application, and in particular, in relation to the amount of paperwork that is involved.
2. The Applicant seeks adjournment of the summary dismissal application in the application sine die, but in the First Affidavit to a date not before 10 July 2008 with submissions to be filed in the fortnight preceding that date. The application for adjournment has to be considered against the role of this Court as set out in the Federal Magistrates Act[2] and the Federal Magistrates Court Rules.[3] Relevantly, that has been described in the following way:
   • Reading together the objects of the Federal Magistrates Act in s.3, the mode of operation in s.42, and having regard to the objects of the FMC Rules in rule 1.03, it is apparent that the Court is intended to operate in a manner:

(a) as informal as possible in the exercise of judicial power;

(c) which resolves proceedings justly, efficiently, and economically;

(e) avoids undue delay, expense and technicality.[4]

1. It is in that context that the discretionary power to adjourn must be exercised. There are, of course, certain principles which apply generally with respect to adjournments. In determining an application for adjournment, the Court is:
   1. required to afford justice to and balance the prejudice for all parties;[5] and
   2. obliged to manage cases in this Court's list appropriately.
2. Case management does not of course override any manifest prejudice.[6] However, the Federal Magistrates Court Rules and the Federal Magistrates Act, as already indicated, require the just, efficient and economical resolution of proceedings, and it is in that particular statutory context that applications for adjournment must be considered.
3. In relation to the bases for adjournment set out in the First Affidavit, the first is the Applicant's medical condition. The Applicant's wife died of breast cancer on 1 July 2007.[7] He says that he has suffered with various complaints since that time. Those complaints include a number of ailments, including headaches, bleeding noses and a variety of other complaints that are set out at paragraph 5 of the First Affidavit.
4. Until 26 or 28 February 2008 (it is not immediately apparent from paragraphs 6 and following of the First Affidavit) the Applicant refused medication, in particular, it would seem, antidepressants.[8] The Applicant attests to the fact that he attended Dr Budd, a psychiatric registrar at Fremantle Hospital and Health Service, who provided a report, which is attached to the First Affidavit.[9] That report attests to the fact that the Applicant has been in a mentally unstable state at various times following the death of his wife, and says that from the date of that letter, the Applicant is likely to not be in a fit state to attend court or represent himself for a period of eight weeks. That report was written in relation to the Supreme Court litigation to which the Court has already referred.
5. At paragraphs 8 and 9 of the First Affidavit, the Applicant indicates that he started to take antidepressant medication with effect from 26 February 2008, and that that had some positive effect on a sleep deprivation problem that he had, but various other symptoms remained.
6. At paragraph 10 of the First Affidavit, the Applicant says that he has had to forgo pathology tests scheduled for today because of the required Court attendance today, and that the tests will need to be rescheduled to some future date, and the Applicant refers to a test request form which is annexure ASF2 to the First Affidavit. The Court notes in passing that this was not a matter which was adverted to in any way, shape or form at the directions hearing on 28 April 2008.
7. The Applicant indicates that with respect to a prescription, also part of annexure ASF2, that he will not be filling it and has ceased using antidepressants.[10]
8. At paragraph 18 of the First Affidavit, the Applicant says that the pressure of trying to comply with the Court's order of 28 April 2008 has led to a resurgence of many of the complaints that he previously suffered. In short, it suffices to say that the Applicant says that pressure and stress precluded him from dealing with the Court's orders of 28 April 2008.
9. The psychiatric registrar's report[11] relied upon by the Applicant, does not support the contention that the Applicant is unable, by reason of his mental state, to deal with this matter now. Rather, it indicates that eight weeks from 26 February 2008, would see him in a more reasonable mental state, to deal with court attendance and appearance. In the context of that letter, of course, the court attendance and appearance was in the Supreme Court of Western Australia, not this Court. It is now nine and a half weeks later. No further medical evidence is relied on concerning the Applicant's mental state, and the only conclusion that the Court can reach on the basis of the evidence before it is that the Applicant is presently in a reasonable mental state. That is supported, it must be said, by the manner in which the Applicant has dealt with the Application, and the fulsome nature of the affidavit material that he has filed, being the First Affidavit and the Further Affidavit.[12]
10. In relation to the other medical conditions, that is the non mental state medical conditions, there is no particular medical evidence. It was indicated to the Applicant at the directions hearing on 28 April 2008 that the Court would not be prepared to adjourn on the basis of simple certificates saying or indicating that the Applicant was unwell or unable to attend todays hearing. The Court also notes that the pathology test request,[13] contains no date for testing, and certainly no indication that the test was due to be held today. Furthermore, there is no evidence as to how the tests are arranged, would have to be booked, and if so, how, and how far in advance. Further, the pathology test request refers only to recurrent nosebleeds and to none of the other complaints that the Applicant alleges that he suffers from. The evidence in relation to the non-mental state other medical conditions is largely self-serving, corroborated only to the extent of the nosebleeds in the pathology test request.
11. To the extent that the Applicant alleges depressive illness, it is relevant to note that he has ceased using the prescribed antidepressants. To the Court, that means one of two things:
    1. that he is now well enough and feels that he does not need to use antidepressants; or
    2. that he has decided of his own volition to cease a prescribed course of antidepressant medication.

If the former, it is no support for an application for further adjournment. If the latter, the consequences of that voluntary act ought not be visited upon the Respondent by the granting of an adjournment.

1. The Applicant has indicated that he is under pressure trying to comply with the Court's orders of 28 April 2008 and deal with his alleged medical issues. The Court has already dealt with those alleged medical issues. The facts disclose that the Applicant is coping with the pressure of trying to comply with the Court's orders. He has filed an application in the case and the First Affidavit on 30 April 2008, albeit slightly later than the required timeframe in the order of 28 April 2008. The Applicant has now filed the Further Affidavit of 2 May 2008 in support of the adjournment application. The orders therefore have essentially been complied with and the Respondent raises no issue of prejudice in relation to non-compliance with the orders with respect to the adjournment. The Court has noted above that the affidavits are fulsome. They deal at great length with what the Applicant perceives to be the issues. The nature of the affidavits in particular indicate to the Court that the Applicant has been able to deal with the alleged pressure and, further, that much of the pressure may be self-induced because of the fulsome nature of those affidavits.
2. In relation to the Supreme Court litigation, the Court was told by the Applicant that the Supreme Court litigation is:
   1. "long, voluminous in documents, complicated and has origins dating back to December 2005... and involves voluminous appeal books and complicated preparation needing the entire period of 10 weeks prior to that litigation for the Applicant to focus solely on that litigation";[14] and
   2. that the matter has been adjourned to mid-June 2008 in recognition of the Applicant's medical condition and that as a consequence of that, he is essentially not able to deal with litigation in this Court.[15]
3. This Court is not told:
   1. what the Supreme Court matter is about; and
   2. what stage it is at.

There are no pleadings provided, no listing notices, no orders, no transcripts in support of the contentions put by the Applicant. There is no evidence on which this Court can properly determine the nature of, or the stage which has been reached in, the Supreme Court proceedings and therefore what might or what might not be required of the Applicant in that regard.

1. A summary dismissal application ought to be determined quickly or as quickly as is reasonably possible. That, to adopt the words of the old English proverb, is the nature of the beast.[16] Therefore, in the ordinary course it would not be unusual, particularly in this Court, for a summary dismissal application to be heard within two weeks of it being made. In this case, there are further reasons as to why that would not be unusual. The summary dismissal application in this case is relatively straightforward. It is based on a general principle which is relatively well-known and established in the law and has been applied recently by the Federal Court in Pickering v Centrelink.[17] There does appear to be some issue, possibly, around section 39B of the Judiciary Act, 1903 (Cth), but it is noted that that did not seem to particularly trouble the Federal Court in Pickering.
2. It is therefore the case that this Court is not prepared to adjourn this proceeding on the basis of the Supreme Court litigation. The Court would be more inclined were the Applicant to seek to do so to:
   1. hear the Respondent in relation to the summary dismissal application today; and
   2. in all of the circumstances, particularly given that the Applicant is self-represented, allow a short adjournment of, say, a week before he was required to reply. That, however, is not a matter which has been requested by the Applicant and in his absence today, it is unlikely to be requested. Dealing with the matter in that way would have, of course, meant that this litigation would not, in this Court's view, unduly interfered with the Applicant's preparation for the Supreme Court litigation in mid-June 2008.
3. The Applicant also seeks an adjournment on the basis of his request for further documents from Centrelink as set out in annexure ASF3 to the First Affidavit. That request proceeds from a fundamental misunderstanding of the nature of a summary dismissal application. The question in a summary dismissal application is whether the application by the Applicant has no reasonable prospect of success and does not have anything to do with what might be produced in response to that application.[18]
4. There is a further difficulty with respect to the request for production of documents in terms of section 45 of the Federal Magistrates Act and rule 14.02 of the Federal Magistrates Court Rules. The Court refers to what was said by the Court in Abrahams v Qantas Airways Limited

(No 2): * In summary it appears that in order to obtain an order for discovery in this court, the court must determine on the available evidence that it is in the interests of the administration of justice to do so and in making that determination, must have regard to whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings and such other matters as the court considers relevant. Those other matters might include: * (a) the relevance of any documents sought to be discovered; * (b) the volume of documents sought to be discovered; * (c) whether there is a court book containing relevant documents and the extent to which relevant documents are included in the court book; * (d) whether discovery would narrow the issues; * (e) whether both parties seek discovery; * (f) whether there is consent to discovery; * (g) whether discovery is of benefit in the litigation; and * (h) the effect of discovery on litigants, especially vulnerable litigants.[19] 5. In relation to those principles, this Court is not satisfied that it is necessary for there to be voluminous discovery in relation to the summary dismissal application which rests upon points of law, not fact. In any event:

1. the Court has no evidence and is not persuaded of the relevance of the documents sought to be produced or discovered in the context of the summary dismissal application; 2. on the face of it, it would appear that the volume of documents sought might be enormous and involve significant searches and entail significant delay;

1. discovery is unlikely to narrow the issues, particularly in the context of a summary dismissal application;

1. there is no express consent to the discovery; and 2. the Court is of the view that there would be no benefit to the litigation at this stage when what is under consideration is a summary dismissal application.
2. There is therefore no basis for the grant of an adjournment on the basis of the request for further documents.
3. With respect to the issue of self-representation, that will be dealt with in the context of the application for pro bono referral.
4. With respect to the issue of bombardment, or oppression by the Respondent's solicitors, the claims about being bombarded by the Respondent's solicitors are, to be frank, exaggerated both as to form and substance. Indeed, the Applicant misconceives the nature of what has been done by the Respondent. The Respondent has, as to the provision of various documents, acted as a model litigant. It has provided, without order of the Court, copies of submissions and cases, both to the Court and the Applicant. Further, in correspondence to the Applicant it has explained, in relatively simply language, the basis for the summary dismissal application. In the Court's view, the information provided to the Applicant by the Respondent ought assist rather than retard the Applicant. The allegation of bombardment affords no basis for the adjournment of these proceedings in relation to the conduct of the Respondent's solicitors. Nor does it afford any basis in relation to the alleged conduct of officers in the Court's Registry who, as the Court understands it, from reading the papers on file, have simply sought provision of relevant documents for a fee waiver from the Applicant.
5. The Applicant has today filed a Further Affidavit. That Further Affidavit reiterates the baseless allegations of bombardment. That Further Affidavit asserts that the Applicant has spoken to many people, who are not named, and says that he has been, "reliably informed", by further persons not named that, to put it shortly, there is substance in the application. Much of what has been said in that Further Affidavit is vague and irrelevant to the summary dismissal application.

1. Although not part of the original application in the case for the adjournment, the Further Affidavit does however seek a referral for assistance, pro bono, under rule 12.03 of the Federal Magistrates Court Rules. The question of pro bono assistance and referral has been dealt with extensively by this Court in Bartucciotto v Western Health Care and Others[20] and the Court repeats what was said in that case in relation to the general terms of pro bono assistance.
2. It is necessary to have regard in determining the application for pro bono assistance to the factors under rule 12.03.[21] Firstly, in relation to means, there is no evidence before the Court of the Applicant's means. The Court is however prepared to accept that, as indicated in the Applicant's affidavit, he is unemployed and therefore prepared to infer that it is likely that he is dependent on welfare benefits. With respect to, secondly, the capacity to obtain legal assistance outside of the pro bono referral scheme, there is no evidence of attempts to obtain that assistance or any evidence of prior referrals in relation to this matter. In respect of the nature and complexity of the proceeding, it has to be said that to an experienced eye the summary dismissal application is not complex. The Court accepts however that it may appear complex to the Applicant, when the reality is that in legal terms the summary dismissal application is not complex.
3. The nature of the proceeding, that is the summary dismissal application, is such that it ought to be dealt with quickly in the ordinary course of events. The nature of the proceeding is however such that it is clear on the affidavit material that it is a consuming force in the Applicant's life. It is the case, and it is clear on the materials that have been filed by the Applicant, that he neither apprehends nor understands, either because he cannot or does not want to, the nature of the summary dismissal application. In respect of that, the Court adopts what it said in Bartucciotto:
   • The Court...does not consider the Applicant incapable of presenting the case himself. If the Applicant does so the proceedings will probably be slower, the presentation less clear, and a great deal more explanation might be required from the Court to ensure the proceedings stay on track (but all generally good reasons for the referral of the matter and the assistance of counsel). But if no pro bono assistance is forthcoming the Applicant can, in the Court's view, present his case with sufficient adequacy. In that regard, the Court notes that counsel for the second Respondent has agreed that the second Respondent will act as a model litigant.[22]
4. In this case that has not been said to the Court but it is generally the case that Government Respondents do act as model litigants. To quote again from Bartucciotto:
   • Further, the Court can and will have regard to principles established to allow courts to deal with self-represented litigants and diminish (so far as possible) disadvantage suffered by an unrepresented litigant vis-à-vis a represented litigant but not so as to have the presiding officer, "Get into...(the unrepresented litigant's) corner and provide them with tactical and other advice as to the consequence of certain actions".
   • The nature and complexity of the proceedings is such that it would be preferable but not essential for counsel to appear for the Applicant at hearing and to assist with pre-hearing procedures and documents. Thus, this factor favours a referral being made.[23]
5. In respect of other matters for consideration under rule 12.03, the Court notes again that there have been no prior referrals.
6. With respect to case management, the Court notes that this is a case in respect of which an application was originally made to the Federal Court more than 12 months ago. The matter appears to have languished there for some months during a period in which the Applicant was caring for his dying wife or, on the basis of what is apparent from annexure ASF1, the psychiatric registrar's report, in a period of deep grief for his dead wife. In relation to the matter now being before this Court, this Court repeats what it said earlier with respect to the objects of the Federal Magistrates Act and the Federal Magistrates Court Rules and adjournments generally, and what it has just said in relation to pro bono referrals. In respect of the issues of case management, it is a factor which is probably, at best, neutral and possibly slightly against a referral for pro bono assistance.
7. On a consideration of all the factors, the Court considers that an order for referral for pro bono assistance ought to be made. In that regard, the principal factor for consideration by the Court and the one that has prevailed over all others is the nature and possible complexity of the proceedings viewed from the point of the Applicant and his apparent non-understanding of the proceedings, and the assistance as to the law, procedure and general conduct of the proceedings that counsel would be able to render if pro bono counsel is found to assist the Applicant.
8. In those circumstances, it is therefore necessary to adjourn the proceedings to allow:

1. the referral to occur; 2. counsel to be found, if counsel can be found; and

1. if counsel is found, that counsel to prepare for the summary dismissal application.
2. As will be evident, the Court has weighed, in considering the referral, the issue of delay which has been adverted to by counsel for the Respondent and the nature of the summary dismissal applications. On a consideration of all the factors, and not without some considerable doubt in the circumstances, the Court has determined that it is appropriate to have a pro bono referral and, therefore, an adjournment of these proceedings.
3. The proceedings in respect of the summary dismissal application will, therefore, be adjourned to 2.15 pm on 14 July 2008. The Court notes that that ought to allow for the disposition of whatever Supreme Court proceedings there are which, on the Applicant's materials, are due to be further heard in mid-June. With respect to the further case management of the matter, whilst the Court has referred the matter for pro bono assistance to be provided to the Applicant , it is of the view that the Applicant would be able to run the case himself. It is the case that if the Registrar's attempts to arrange for pro bono legal assistance are unsuccessful, the Applicant will have to run this case himself. Thus, it is the case that the order for referral will not be an excuse for further delay in the proceedings which are already protracted and which the interests of justice and the administration of justice require be heard sooner rather than later. In that context if pro bono counsel is not able to be found for the Applicant, the matter will proceed on 14 July 2008 and will proceed even if the Applicant is not present. The Court's view is that there is sufficient material and the summary dismissal application is of such a nature in relation to the issues of law involved that it can proceed even if the Applicant is not present on that day.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Lucev FM

[1] Applicant's Affidavit of 30 April 2008.

[2] Federal Magistrates Act, 1999 (Cth).

[3] Federal Magistrates Court Rules, 2001 (Cth).

[4] Goodall v Nationwide News Pty Ltd [2007] FMCA 218 at para. 21 per Lucev FM.

[5] Myers v Myers [1969] WAR 19; Mahmoud v Owners of Strata Plan 811 (No 2) [2006] FMCA 1711.

[6] State of Queensland & Anor v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146.

[12] Applicant's Affidavit of 2 May 2008.

[14] First Affidavit, paras. 11 and 13.

[15] First Affidavit, paras. 12 and 14-16.

[16] D.C. Browning (Ed), Dictionary of Quotations and Proverbs. The Everyman Edition (London: Octopus Books, 1982) p.392.

[17] [2008] FCA 561.

[18] Balding v Ten Talents Pty Ltd (2007) 162 IR 17; [2007] FMCA 145.

[19] [2007] FMCA 639; (2007) 210 FLR 314 at 321 per Lucev FM; [2007] FMCA 639 at para. 25 per Lucev FM.

[20] (2007) 94 ALD 387; [2007] FMCA 26 ("Bartucciotto").

[21] Bartucciotto ALD at 391-392 per Lucev FM; FMCA at paras. 22-31 per Lucev FM_._

[22] Bartucciotto ALD at 393-394 per Lucev FM; FMCA at paras. 36 per Lucev FM_._

[23] Bartucciotto ALD at 394 per Lucev FM; FMCA at paras. 36-37 per Lucev FM_._