Mahmoud v The Owners' Corporation Strata Plan 811

In determining the Notice of Motion and, in particular, the application for adjournment, I am required to afford justice to, and balance the prejudice for, all parties, not just the Applicant, but the Respondent, the Official Trustee and any creditors. I am also obliged to manage cases in this Court's list appropriately. Case management does not override any manifest prejudice, and I refer to the High Court's decision in JL Holdings.[2]

However, the Federal Magistrates Court Rules, 2001 (Cth), in particular r.1.03, require the just, efficient and economical resolution of proceedings. They do require the Court to proceed informally, but in a streamlined way, and they also provide that the parties must avoid undue delay and expense. Suffice to say that this morning, I think that I have been relatively patient in hearing the Applicant in these proceedings. However, weighing those particular considerations in relation to the adjournment, that is the procedural considerations in relation to appeal and process and case management, it is my view that it is time to get on with it and to hear the substantive application in relation to the annulment.

The Applicant, however, does not stop there but pleads certain, overwhelming in his view, time pressures and he cites a variety of time pressures that he has put to the Court. It suffices to say, in my view, that they are mainly of his own making. He has done everything, everywhere, including, it appears on the basis of what he has put today, in the Federal Court of Australia and the District and Supreme Courts of New South Wales, possibly with the New South Wales Legal Services Commission, foreshadowed an appeal in the High Court, and has corresponded with the Prime Minister. Now, the latter, of course, is completely irrelevant under the Westminster system but, in relation to all of those matters, there is nothing which prevents this Court from proceeding to hear the matter at this point in time.

Having done all of that, he has, and this is noteworthy, failed to comply with the orders of this Court. If, as he asserts, as he does assert by the making of the application and the submissions proffered today, that he has a just case - and I make no determination on that at this stage, because that is not a matter in respect of which I have heard relevant evidence - the energies that have been expended thus far might have been better invested in preparation for this case. The Applicant has chosen not to do that and, in my view, the time pressures that he speaks of are of his own making.

In any event, given the timeframe within which this Court has dealt with this matter, and I have adverted earlier to the orders made Federal Magistrate Barnes in May and August, it is, in my view, sufficient to say that he has had ample time to file and serve any affidavit evidence which he seeks to rely upon.

In relation to the application to cancel the Respondent solicitor's practising certificate that is an application which, as I understand it, was made yesterday. Until such time as there is an order of a relevant court in relation to that matter, that application is, in my view, irrelevant to these proceedings.

I have already upheld the objection of Mrs Koroknay for the Respondent to what is annexure A to the affidavit filed in support of the Notice of Motion (and to passages to the same effect where appearing elsewhere in the Affidavit) on the basis that it is not a business record, and is not properly proven in any way. That is the matter with respect to the disclaiming of payment and, even if I am wrong in that respect, might I say that that appears to me to be a matter for the substantive hearing and not a matter relevant to the adjournment. Similarly with annexure B to the affidavit in support of the Notice of Motion, the letter to ITSA.

In respect of annexure D, which appears to relate to the trauma which the Applicant says he has suffered, it is evident that that trauma was one which was caused by events in April or May 2006 on my perusal of the material. I have no doubt that it was traumatic at the time and that there are follow-on consequences for the Applicant. We are, now, however, several months down the track, and it suffices to say that the Applicant says that there is nothing wrong with him and, in his submissions today, allowing for the fact that he is an unrepresented Applicant, who clearly passionately believes in the cause that he puts before this Court, he has been a relatively coherent and, certainly, does not have any difficulty, in my view, in making the points that he wishes to make: on occasions in a manner which has bordered on disrespect to the Court.

For those reasons, and taking into account the relevant authorities,[3] I see no reason to grant the order sought with respect to an adjournment.

I have also, this morning, prior to proceedings, and before I was aware that this Notice of Motion was on foot, read the papers on the Court file and I can say that, from the Court's point of view, there is nothing untoward on the file, and I, therefore, do not propose to make any order sought with respect to an adjournment for service of various documents in relation to the second order sought in the Notice of Motion.[4]

The third order sought in the Notice of Motion[5] is not pursued and, on that basis, I dismiss the Notice of Motion.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lucev FM

[1] State of Queensland and Anor v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 173-174 per Kirby J ("JL Holdings").

[2] JL Holdings at 154 and 155 per Dawson Gaudron and McHugh JJ, at 166 per Kirby J.

[3] Myers v Myers [1969] WAR 19 and Maxwell v Kuen [1928] 1 KB 645.

[4] The second order sought was an order: "That the file be inspected by [Federal] Magistrate Barnes and if there are any documents or materials not served on the Applicant, then the hearing should be adjourned until he is served with the documents and time given for him to respond."

[5] The third order sought was an order: "That [Federal] Magistrate (sic) Barnes disqualify herself because annex[ure] D of the affidavit touches heavily on the subject of feminism and the Applicant is very concerned that he would be prejudiced by [Federal] Magistrate Barnes."