Why the application is allowed
26 The determination of whether to grant such an application is a discretionary one which requires the balancing the interests of the parties as well as of all the other litigants before the Court, for whom these dates were no longer made available. The determination of case management issues of significant moment, such as this occasion, involves endeavouring to do justice as a whole: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [30].
27 The unfortunate procedural history of the matter and the multiple previous adjournments have frustrated the Court's attempts to attend to this matter with due dispatch and efficiency.
28 The Court has a very significant concern that Mr Mu, has not done all that was within his ability to deal with this matter with due dispatch.
29 The applicant identified a number of persuasive reasons, both as articulated by Senior Counsel for the applicant and in the evidence of Ms Delaney, consistent with the organisation principles underpinning the Court's discretion as to why, the adjournment ought not be granted. First, the matter has been set down for over a year. Secondly, there are questions as to the inadequacy of explanation of circumstances leading to the respondents' loss of representation in April 2024. In this respect, it is clear that Mr Mu's former solicitors terminated the retainer on the basis of what they say was a fundamental breach (regarding the non-payment of $300,000 by the end of March 2024). However, the evidence reveals that Mr Mu did advance over $160,000 after this time and appeared to assume that there was no such essential term. Despite the urging of the parties, with different effect, it is my view that the evidence reveals that there was a dispute regarding fees and for unexplained reasons Mr Mu did not pay the amount owing. However, it was his evidence that he misunderstood this to be a term. Regardless, it is my view that the evidence does not establish that Mr Mu orchestrated the termination of the retainer in order to bring about an adjournment.
30 In any event and the third matter which the applicant asks that I take into account, is that the respondents have never suggested loss or absence of representation arises from their financial circumstances, incapacity or otherwise. Fourthly, since the last failed adjournment attempt, the only evidence of Mr Mu making attempts to secure representation, is that he had contact with one law firm, Addisons (and it took effectively two weeks for him to agree terms and provide money on trust). Senior Counsel for the applicant made a number of submissions as to the slowness of and/or inaction to progress the matter by Mr Mu thereafter, including by the provision of instructions to retain Counsel. This included the fact that, despite the Court having asked Senior Counsel for the respondents on 8 May 2024 whether any attempts had been made to retain the previous counsel, no such attempts were made for three and a half weeks. Notably, of course, that the submission was rightly pointed, by Senior Counsel for the applicant to an absence of instructions on Mr Mu's part and says nothing about the due dispatch or otherwise exercised by the solicitors now retained by Mr Mu.
31 However, I do accept that after the last adjournment, ultimately Mr Mu did retain solicitors (albeit not quickly) and also that his solicitors were, until 4 June 2024, operating on the assumption that they would appear with the combined assistance from Mr Hutley SC for the first week of the hearing and Mr Fox SC for the next two weeks. However, Mr Hutley SC then became unable and informed them on 4 June 2024 that he could no longer act. Whilst I accept there might be some criticism of the time it took to obtain counsel and the absence of junior counsel being retained, a critical event leading to the respondents being unable to ready themselves (albeit in a less than ideal way) was the loss of Mr Hutley SC last week.
32 This means that the remaining Senior Counsel, Mr Fox SC, is left in the invidious position of having less than a week to prepare. The Court has contemplated whether the matter could be delayed by a week to afford Mr Fox SC the opportunity to get up to speed and prepare to cross-examine four lay witnesses in relation to what he estimates to be over a hundred conversations, putting aside the other matters which would be required to be the subject of that cross-examination. Whilst Mr Fox SC is very experienced and capable, I accept his submission that he does not consider that is sufficient time for him to prepare and in any event, it is my view that even if there were a delay of a week (which, in the circumstances, I would be minded to grant) the matter would not complete in that period. Mr Fox SC submitted that he was only available until 1 July 2024.
33 Whilst Senior Counsel for the applicant submitted that the matter could proceed thereafter for the remainder of that week without Counsel, I do not consider that would be procedurally fair in the circumstances, particularly where the respondents' witnesses would be giving their evidence, in effect, without the benefit of counsel. In any event, account must be taken of the fact that by reason of the respondents having not taken all the procedural steps required to complete the matter, it must be accepted that this will lead to inefficiencies during the trial. I accept that the consequences of this failure should not befall the applicant. I must, nonetheless, take into account all of the circumstances which includes how practically this matter will proceed, to which I will return.
34 I accept that the applicant will suffer prejudice as a result of a further delay which includes, the continued infringement of its trade mark by the respondents for which there is a concern, given the size of the potential damages (at least $10 million) that it will be unable to recoup them given the respondents' known asset pool. Further, it is not without significance that the applicant had sought to restrain Mr Mu's use of the mark and that application was refused in 2021 by reason of the then hearing being in mid-2022. The applicant also has been the subject of an order that it provide security of $550,000 into Court, to which Ms Delaney refers in her affidavit. If the matter is adjourned until 2025, then the applicant will not have had the benefit of access to those funds for nearly two years.
35 In addition, I accept that the applicant will suffer prejudice regarding the costs thrown away, including, in particular, having made arrangements for its witnesses to travel to Australia, and arranging interpreters. This, of course, does not include the fact that the applicant was entitled to assume that a hearing would be heard when it was listed and had made arrangements to travel to Australia. Ms Delaney has set out extensively the preparations that have been made by her legal team in the last six months and what the delay will cost (though noting it cannot comprise a complete account of the inefficiency that will arise). In that respect, I note, and I accept the submission made by Senior Counsel for the Respondent that Ms Delaney has sought in a comprehensive way to describe the extent of the preparation that her client has had to undertake in good faith in the last six months. This evidence is relevant to the costs thrown away but, of course, it does also bring into stark relief the difficulty on the side of the respondents' solicitors and counsel where they now do not have even have a small fraction of the time to prepare for the hearing. This has to be taken into account.
36 It is my view that the applicant is entitled to its costs for the adjournment as well as its costs thrown away. I am also of the view that it should be entitled to the orders that it seeks in relation to, first, the payment forthwith of the applicant's legal costs of and incidental to the adjournment application filed on 6 May 2024 as agreed or assessed, and also forthwith to pay the applicant's legal costs of and incidental to the adjournment. In addition, I will order that the parties enter the cost arrangements otherwise agreed and for the respondents to provide security for certain of the costs in the sum of $300,000.
37 The Court must, when determining where to draw lines in case management processes, consider the overarching purpose under s 37M(1) of the Federal Court Act 1976 (Cth), do, as expressed by Mortimer J in Agius v State of South Australia (No 4) [2017] FCA 361 at [85], namely to reach a conclusion that is consistent with this overarching objective, while ensuring the active parties have a reasonable opportunity to present their respective cases.
38 I accept the many submissions made by the applicant to which I have referred to above as to the inadequacy of explanation in the past and a certain lack of promptitude by Mr Mu (in instructing Addisons) regarding the securing of Counsel for this hearing. I note the careful submissions made by Senior Counsel for the applicant in this regard, as well as the evidence of Ms Delaney.
39 However, it is the Court's view that ultimately, the stickiness of the respondents' current predicament (regarding lack of Counsel and preparation time) is, in part the result of inaction on Mr Mu's part, but is also in part based on miscommunication regarding the availability of Mr Hutley SC. By reason of this, for the reasons set out above, the other retained Senior Counsel cannot be forced on in the way the Lian Fa proposes.
40 The Court must consider how practically this matter can proceed. Part of that consideration includes, if the matter were to proceed next week, how it will occur, in circumstances where the respondents have failed to undertake any of the necessary preparatory steps to date. They have not filed their submissions, objections, the Statement of Agreed Facts, conferred regarding outstanding translation disputes and acted with dispatch to ensure that the joint expert report is before the Court. Now, whilst, of course, again, this failure should not befall the applicant in the circumstances, it is one where the Court has to be mindful of the fact that it will not be assisted without those steps being undertaken and where the applicant will be at a disadvantage, not knowing (with the benefit of submissions and the other interlocutory steps that have to be taken in advance) what the respondents' case is, particularly with respect to its cross-claim. The Court is concerned also that this would lead to the proceeding not completing in the allotted time in any event and there will be further requests for an adjournment.
41 The difficulty for the Court, in this circumstance is that the applicant and the Court will not ultimately be assisted in this matter if the respondents appear without adequate representation in the time that is currently allocated. It appears inevitable that the matter would not have concluded in the time allotted even if the parties pressed on.
42 Accordingly, with serious misgivings so as to ensure that the matter is actually progresses in a timely and just manner where the Court and the applicant are assisted by the respondents being adequately prepared, the Court is minded to grant the adjournment on the basis of the matter being set down at a time convenient to the applicant. The Court will make the orders that the parties have otherwise proposed, including that the matter be listed for case management next week.