KERR J:
1 On 29 April 2019 I made orders that a case management hearing in these proceedings be adjourned to Monday 3 June 2019 at 10.00 am. I anticipated, and the orders that I made were made on the basis, that the parties would confer with a view to advising the Court as to appropriate pre-trial steps and a timetable.
2 In the course of the adjourned case management hearing of 29 April 2019 Mr Martin adverted to the imminent birth of his child. The Court indicated that it would expect Norton Rose Fulbright Australia (NRF) to be understanding of any difficulties arising regarding those circumstances. Mr Martin submits that counsel for NRF, Ms Ng, gave a formal undertaking that no step would be taken by NRF if Mr Martin's wife suffered any complications in that regard, but the transcript of that case management hearing does not support that contention.
3 In accordance with the orders the Court had made on 29 April 2019, the adjourned case management hearing was scheduled for 3 June 2019 at 10.00 am. In anticipation of that hearing, NRF communicated by email (copied to Mr Martin) their proposed pre-trial steps and a timetable, indicating that at that stage it had not received a response from Mr Martin in relation to its proposed orders.
4 On 31 May 2019 my associate received an email from Mr Martin requesting the adjournment of both that case management hearing and the timetabling for filing of submissions in relation to a proceeding before White J in which Mr Martin had applied for leave to appeal from interlocutory orders made by Charlesworth J on 11 February 2019 in SAD49/2017.
5 Mr Martin's email advised that he sought an adjournment on the grounds of personal illness and caring responsibilities. He attached two medical certificates from his general practitioner, Dr Ng. Those certificates recorded Dr Ng's opinion that Mr Martin had been unable to attend work due to his medical issues from 24 May 2019 to 29 May 2019.
6 Mr Martin's email further advised that on Sunday 26 May 2019 his wife had given birth to a son approximately two weeks ahead of the due date. They had been admitted as in-patients at the Burnside Memorial Hospital until their discharge on the afternoon of 28 May 2019.
7 Mr Martin advised that during that time he had had primary care of his three year old son, who had also been unwell. His responsibility for care of his family was continuing. He advised that his wife was still convalescing from labour. Mr Martin stated that he would be attending an urgent medical appointment with his wife at the family GP clinic with a view to arranging certain procedures at a later date. He did not know whether those procedures would involve in-patient or out-patient care, but advised his wife was likely to be referred to a specialist. Mr Martin advised that he intended to update the Court and provide a further medical certificate later that day.
8 Mr Martin asked that any requirements for him to file documents, correspond with the other side, prepare for or attend court in either these matters or in SAD40/2019 be postponed until such a time as he would be able to attend properly to the litigation.
9 Mr Martin's email indicated that if White J deemed it necessary to fix orders for the future conduct of the proceedings, he proposed that the date for filing his submissions be extended until 17 June 2019. Mr Martin requested the case management hearing before me be rescheduled for no earlier than 24 June 2019. It was said by way of submission that the latter variation would notionally allow time for White J to deliver judgment, which will then inform what progress could be made in the substantive matter.
10 Mr Martin's email correspondence concluded:
I would be very grateful for an early indication from the Court as how it intends to proceed in this respect, as the pending Court obligations are proving an additional source of unease for my wife.
I have not consulted with King Wood Mallesons about this email, due to the urgent nature of the request.
11 Following receipt of that email, my associate advised the parties as follows:
Given the circumstances, his Honour is minded to adjourn the 3 June 2019 case management hearing until 10 am (AEST) on Tuesday 11 June 2019. Any further request for an adjournment must be supported by an affidavit setting out the facts and circumstances relied upon, and the deponent will be required to be available for cross-examination.
If parties are able to settle proposed timetabling orders over the next week, his Honour would be grateful if a signed minute of consent could be provided to Chambers by no later than 2.00 pm on Friday 7 June 2019.
12 The Court later rescheduled the adjourned case management hearing to that date.
13 The next correspondence I should mention is an email received at 9.24 am (AEST) on 11 June 2019 from Mr Martin, copied to the solicitors for NRF, in which he wrote:
Regrettably, I must request a brief adjournment of the case management hearing this morning as I have not yet been able to prepare the affidavit setting out the facts and circumstances relied upon …
My restricted capacity extended through to the end of last week, as per the attached email and certificate. I provided this to White J's associate and King Wood Mallesons on Monday 3 June 2019, and I had believed to you also. It seems that White J's Associate had removed your email address from her reply to me, which I did not pick up on at the time.
14 Mr Martin had attached his email to White J's associate, to which a scanned letter from Dr Ng dated 31 May 2019 was attached, headed "Re: Mrs Victoria Martin", in which Dr Ng states:
This is a letter to state that the above patient has been unwell and their spouse, Thomas Martin has had to remain home to be their carer on the following dates: 31/05/2019 to 7/06/2019
15 As is self-evident, that week had already concluded. I accept there appears to have been an inadvertent break down of communication (Mr Martin's expectation that his communication to White J's associate would also go to my Chambers), but the substantive point remains that my associate had advised Mr Martin that any further request for an adjournment in this Court would be required to be supported by an affidavit.
16 Mr Martin's email of 11 June 2019 then proceeded:
I expect to file the necessary affidavit tomorrow. I will be generally available for a rescheduled hearing on any day thereafter.
I will attend court this morning unless I hear otherwise in the interim.
17 When the matter came on before me later that morning, Mr Martin appeared (self-represented) by video link. There was then substantial discussion regarding the orders (in respect of the pre-trial steps timetable to hearing) NRF was seeking. Mr Martin pressed his request for an adjournment. As I initially apprehended Mr Martin's request, it was premised on the basis that Mr Martin would not, by reason of the circumstances that had been referred to in his emails, be capable of attending to the pre-trial steps and timetable as would be necessary to prepare the matter he had commenced for trial such that it could be set down for hearing for five days commencing on 23 September 2019. Those five days had been discussed with the parties in the earlier adjourned proceeding of 29 April 2019.
18 On that premise, I asked whether or not Mr Martin had a copy of the proposed orders sought by NRF.
19 Mr Martin told the Court that he did not have those proposed orders before him, but he did not suggest that he had no knowledge of them. Plainly they had been earlier copied to him. However, in prudence, I read to both parties the pre-trial steps and timetable that NRF had proposed.
20 Those were as follows:
Court Book
1 On or before Friday 21 June 2019, the parties are to liaise and finalise an index to a joint Court Book, setting out:
(a) the originating process;
(b) all pleadings; and
(c) any affidavit or witness statement to be relied on at trial (not those for any interlocutory purposes).
2 On or before Friday 28 June 2019, the parties are to exchange soft copies of any documents listed in the Court Book index not in the control of the other party.
3 On or before Friday 26 July 2019, the parties are to deliver a paginated, indexed hard copy of a joint Court Book to the Court.
Objections
4 The parties are to file and serve the objections circulated on 8 March 2019, by 17 June 2019.
Pre-Trial Case Management Hearing
5 A pre-trial case management hearing is set down for [insert date convenient to the court in the week commencing 26 August 2019]
Written Submissions and Lists of Authorities
In compliance with the form set out by the Central Practice Note (CPN-1) and Lists of Authorities and Citations Practice Note (GPN-AUTH):
6 The Applicant must file and serve on the Respondent, the Applicant's Written Submissions and List of Authorities no later than 4.00 pm, 15 clear business days before the hearing date, being Friday 30 August 2019.
7 The Respondent must file and serve on the Applicant, the Respondent's Written Submissions and List of Authorities no later than 4.00 pm, 10 clear business days before the hearing date, being Friday 6 September 2019.
Trial
8 The hearing is set down for 5 days from 23 - 27 September 2019.
Other
9 The parties have liberty to apply.
(Emphasis in original.)
21 I indicated that in the absence of Mr Martin having filed an affidavit (or anything else) as to his future incapacity, I was minded to make such orders, but to accommodate him to a degree by amending the dates such that the time at which the parties were to liaise and finalise an index to a joint court book would be extended to Friday 28 June 2019 (four days after the date Mr Martin had indicated in his email of 31 May he had wanted the case management hearing in this proceeding to be adjourned to); extend to 5 July 2019 the date on which the parties were to exchange soft copies of any document listed in the court book index, not in the control of the other party; extend to Friday 2 August 2019 the date on which the parties were to deliver to the court a paginated indexed hard copy of a joint court book; extend to 28 June 2019 the date on which the parties were to file and serve objections, as circulated on 8 March 2019; and that a case management hearing be listed on a date to be fixed during the week of 26 August 2019.
22 I indicated that I was minded also to extend until Friday 30 August 2019 the time for Mr Martin to file and serve his written submissions and list of authorities, and to Friday 6 September 2019 on NRF's part.
23 Such a timetable would still permit the hearing to be listed for five days from 23 to 27 September 2019. I would of course grant the parties liberty to apply.
24 Having indicated my inclination to proceed in that manner given Mr Martin's un-evidenced incapacity to attend to those matters within that timeframe, Mr Martin then disowned having any such incapacity and pressed his application for an adjournment on a different basis.
25 It was pressed on three grounds: firstly, estoppel; secondly, a breach of procedural fairness; and thirdly, that NRF had misled the Court by saying that they had heard nothing from him since the last time this matter was before the Court. In that regard, Mr Martin submitted that a list of correspondence that had been supplied on NRF's behalf should not be taken into account as evidence because it was not tendered by sworn affidavit, and it would be inconsistent with the even-handedness that would be required of the Court to take account of that selection of documents if he was required to provide sworn evidence as to his incapacity to take part in the management of his proceedings.
26 In respect of estoppel, Mr Martin submitted that Ms Ng had made an undertaking on 29 April 2019 that he would not be required to do anything if his wife gave birth to a child earlier than her expected date.
27 Ms Ng, in response, vigorously refuted having given any such assurance.
28 There is nothing in the estoppel point. I have perused the transcript of the 29 April 2019 case management hearing and am satisfied no such undertaking was formally given.
29 I decline to find that NRF misled the Court by saying that it had not heard from Mr Martin. Mr Martin did not adduce any evidence, and from the materials he put before the Court, I have identified nothing to suggest he had communicated to NRF the asserted difficulties he had by reason of his and his wife's health before this matter was relisted, apart from his email correspondence to the Court.
30 The Court accepts that on 29 April 2019, Ms Ng did not cavil with the Court's indication that it expected NRF to be understanding about the circumstances of a person whose wife might suffer complications following the birth of their child, but the latest medical certificate from Dr Ng states merely that Mr Martin's wife had been unwell since giving birth and that Mr Martin had to remain home to be her carer. However, that was in respect of a period which has expired. And as noted, Mr Martin has resiled from asserting any present incapacity to undertake the tasks of preparing for trial.
31 The procedural fairness point was pressed in respect of a list of correspondence between the parties which NRF had filed and served as asserted to be relevant to the history of the matter. Mr Martin submitted that the list was not complete, and because it had not been supported by a sworn affidavit it would be inconsistent with the even-handedness that would be required of the Court to take account of that selection of documents without it being put forward under a sworn affidavit, given that he was required to provide sworn evidence as to his capacity to take part effectively in the management of his proceedings.
32 Mr Martin also submitted that that list (and associated documents) had not been opened by him until the morning of 11 June 2019. The fact that the list was not opened until the morning of the adjourned case management hearing is of little consequence, given that I apprehend there to have been no reason why it could not have been opened earlier, including outside the period for which a medical certificate had been provided.
33 In any event, after Mr Martin had advanced those objections, Ms Ng did not press the Court to rely on the documents as had been listed. The Court later indicated that it would place no reliance upon them.
34 In those circumstances, I apprehend there to be nothing in the breach of procedural fairness point as would entitle Mr Martin to an adjournment. Mr Martin was on notice that the purpose of the case management hearing was to address the timetable to trial. My associate had specifically advised the parties that in the absence of an affidavit to support necessary factual findings for an adjournment, the Court would proceed to consider the matters that were before it from the previous week, which included the proposed timetable that had been put forward by NRF.
35 I note in that regard that this matter was allocated to me after it was in the hands of other judges for a very considerable period of time. I do not wish to attribute any flaws or responsibility for those circumstances to either party, but it is the duty of every judge of this Court to ensure that a matter is not left in abeyance for a period which is unjustified, and this matter has been before the Court for a very long time. There are limited windows of opportunity for a five day hearing (the time the parties are agreed that the trial of these proceedings will require).
36 In those circumstances, the Court would not readily, and certainly not without evidence or cause, yield to an application that would stand in the way of Mr Martin taking the steps necessary to bring his own proceeding to a state which would permit it to go to trial in September on the days that had been earlier foreshadowed to the parties by the Court.
37 The likelihood of this Court being able to give any time to this case for the balance of the year is vanishingly small. It is most unlikely that alternative hearing dates could be found before at least February or March next year.
38 Accordingly, the Court will make the orders it had indicated, subject to submissions, it was minded to make.
39 My orders however include a provision granting leave to apply. It will remain open, if there is a proper evidential basis to establish that Mr Martin's own health or that of his wife, for whom he must provide care only he can provide, would prevent him attending to the tasks of preparing for trial, to Mr Martin to apply for alternative orders.
40 Similarly, it will be open to Mr Martin to seek a revised timetable if circumstances arise whereby any order made by White J in proceeding SAD40/2019 might impact upon the capacity of this Court to fairly hear and determine the matter that is before it.
41 In that regard, I recognise that the ultimate consideration must be the justice of the case, and events may arise that will require any orders made today to be the subject of reconsideration.
42 I note the submissions that Mr Martin made regarding what he submits to be the unsatisfactory state of affairs regarding discovery and with respect to a notice to produce that was the subject of judicial consideration by the original docket judge in these proceedings some considerable period of time ago. I did not take that to be advanced as a further ground for an adjournment but if I was mistaken in that regard I would not accept that submission.
43 I accept that the parties are not ad idem with respect to those matters. Ultimately, whoever hears and determines the substantive application - and I apprehend that that will be me - it seems likely that there will be a number questions involving some complexity requiring resolution. But inherently, that complexity will be faced by any trial judge and those issues will not go away by deferring them. That is not a reason not to make orders in the terms proposed by NRF (amended as indicated), so that preparation for the trial can proceed.
44 Finally, I should address a further matter that arose as a side wind in these proceedings but which also may become the subject of leave to apply. It turns on the effect of a notice of discontinuance that was given in these proceedings in relation to the proceedings as between NRF and the President and Members of the Fair Work Commission (FWC), originally named as the First Respondent in NSD1610/2016.
45 Ms Ng mentioned in oral submissions that on 11 April 2019 her instructors had received an email from my associate responding to a request for leave to file a notice of discontinuance in that proceeding as between NRF and FWC. Mr Martin seized upon that statement and submitted that he had not been included in the correspondence and that it had been grossly improper for that not to have been the case. There is a live question in my mind as to whether or not there may have been a breach of the professional obligations in not copying to Mr Martin the chain of emails, which commenced by a communication to the associate of Charlesworth J on 26 February 2019 seeking that her Honour attend to whether or not to grant leave for a notice of discontinuance to be filed. Whether or not there may have been good reason for that is unnecessary to determine.
46 That request not having been determined by her Honour, of which NRF was advised on 4 March 2019, the same request was later renewed by an email to my associate after I had become the docket judge. On 11 April 2019 my associate advised the parties as follows:
My apologies that the 4 March 2019 correspondence was not brought to his Honour's attention. Pursuant to r 26.12(2)(b) of the Federal Court Rules 2011 (Cth), leave is not required to discontinue with the opposing party's consent. Please file the notice of discontinuance and it will be processed by the registry.
47 Again, Mr Martin had not been included as an addressee for those emails. That may or may not be the end of the matter. It is clear that NRF had not filed and served on Mr Martin, as at 11 June 2019, the notice of discontinuance, as required by r 26.13 of the Federal Court Rules 2011 (Cth).
48 Mr Martin submits that questions potentially arise as to the consequences of the want of disclosure to him of the approaches made by NRF to Charlesworth J's associate, and the nature of the reply sent to the parties by my associate, regarding the request for leave to discontinue. Mr Martin reserved his position as to whether he might make an application for my disqualification on the basis of apprehension of bias.
49 While I accept those circumstances may become of potential significance, they are matters which Mr Martin is entitled to pursue as he may be advised. They do not stand in the way of the Court making orders to govern - subject to any further determination that the Court might make - the timetabling for how this matter should be prepared so as to be ready to be heard and determined in September of this year.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.