Mijac Investments Pty Ltd v Graham

Federal Court of Australia|2009-04-01|Before: Gordon J

INTRODUCTION 1 Counsel for the Applicant once described this proceeding as having "a chequered history". That is an understatement. The proceeding was filed on 7 April 2005. It concerns events in late 1999. Trial of this proceeding commenced on 23 February 2009. 2 On 25 February 2009, on the third day of trial, the hearing was adjourned because the "principal" of the Applicant, a Mr Alan Jorgenson, had sacked Counsel and then subsequently, the Applicant's solicitors. The precise details or circumstances of these events were not and have not been explained. On that date, I listed the further hearing of the trial to be held on 23 March 2009, on an estimate of a further 5 days. 3 At 9:30am on 23 March 2009, the part-heard trial was called on for further hearing. Counsel for the Applicant, who had not previously appeared, announced his appearance and made an oral application for a further adjournment of the part-heard hearing. Counsel informed the Court, unsupported by any sworn evidence (whether by affidavit or viva voce evidence) that (1) Counsel that had been retained to appear for the Applicant at the resumed hearing had at about lunchtime on Friday, 20 March 2009 returned his or her brief to appear and (2) at 9:30am on 23 March 2009, no alternative Counsel was available. The application for adjournment was opposed by the Respondents. 4 Ultimately, the oral application for adjournment was refused. These reasons for decision record why the application for adjournment was refused and why the Court proceeded to hear the substantive proceeding the next day.

ANALYSIS 22 As I have noted, the First Application made on 23 March 2009 for adjournment of the part-heard trial was refused. The basis for the application for adjournment (unsupported by any evidence) was that if an adjournment was not granted the Applicant would be prejudiced and any prejudice to the Respondents could be met by an order for costs. During the course of reply, the Applicant's Counsel referred to the often-cited judgment of Dawson, Gaudron and McHugh JJ in The State of Queensland v JL Holdings Pty Ltd (1997) 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. 23 That passage from JL Holdings does not state and should not be taken as stating some general or universal proposition that a party is entitled to an adjournment so long as the opposing party is looked after by an award of costs. As many decisions since JL Holdings have stated, the "attainment of justice" is a goal that is not achieved without a proper consideration of the facts in any given case: Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623, [2]; Cassar v Hans Pet Constructions Pty Ltd [2008] NSWSC 1386, [18]-[24]; Chameleon Mining NL v Murchison Metals Ltd [2009] FCA 137, [9]-[15]; Finerty v Deputy Commissioner of Taxation [2008] FCA 1136, [29]-[31]; Smolle v Australia and New Zealand Banking Group Ltd [2008] FCA 1065, [68]; Williams v Calivil Park Holsteins Pty Ltd [2009] NSWSC 31, [20]-[21]. The basic premise was clearly enunciated by Lindgren J at [52] in Thoo v Kelly (2008) 169 FCR 470: The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ (Bhardwaj); Touma v Saparas [2000] NSWCA 11 at [27]). The procedure that will satisfy the demands of procedural fairness may differ in order "to meet the particular exigencies of the case" (Kioa v West (1985) 159 CLR 550 at 615 per Brennan J). As I stated in Ali v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 41 AAR 410 at [27]: Ultimately, each complaint of a failure to accord procedural fairness by reason of the refusal of an adjournment turns on its own facts. Whether an adjournment should be granted is a matter within the discretion of the trial Judge (or Tribunal), to be resolved according to the overall requirements of justice in the particular circumstances [citation omitted]. 24 The requirements of justice in this particular case do not, on any view, require the Court to grant the Applicant's oral application for an adjournment. The proceeding has been on foot since April 2005. The substantive events occurred in 1999. The Applicant has continually failed to comply with directions made by the Court. The trial is part-heard and only part-heard because the Applicant dismissed its Senior and Junior Counsel and solicitors respectively on days 2 and 3 of the hearing, events which had occurred approximately 4 weeks earlier and which had necessitated the need for the trial to be adjourned to the current hearing dates. The allegations raised against the Respondents are serious. The Respondents have a right to have those allegations heard and determined. It is not in the interests of justice in relation to this proceeding, or in the administration of justice generally, for this Court to delay the hearing and determination of this matter any further. Moreover, the cost of these proceedings to the Court and to the parties is disproportionate to the nature of the proceedings and the allegations raised in these proceedings. In light of those facts, a Court is entitled to expect that any application for adjournment would be for good reasons. 25 What then were the reasons for the application and what was the "prejudice to the Applicant" if the part-heard hearing was not adjourned again? I acknowledge that if I refused the application for adjournment and the Applicant did not have Counsel briefed to appear at the trial, the Applicant would probably be prejudiced in the further conduct of the proceedings. However, except for statements from the Bar Table, no evidence was adduced by the Applicant in support of the oral application for adjournment. In the circumstances described above and in the absence of any material in support of the application for adjournment of a part-heard trial at this late stage, the application must fail. In fact, it was only during the hearing of the Fourth Application, for an adjournment of the part-heard trial for 24 hours, (and after I had refused the First Application) that the Applicant's instructing solicitor, Mr Needham, was called to give viva voce evidence that on Friday 20 March 2009, Counsel had returned the brief to appear at the resumed trial on behalf of the Applicant. However, the submission from Counsel for the Applicant, and supported by the evidence of Mr Needham, was that the brief had only been delivered to Counsel on Wednesday 18 March 2009. Why the brief was not delivered before 18 March and why Counsel returned the brief on 20 March was never explained. It was apparent that it was not because the brief fees had not been paid. Mr Needham's evidence was that fees for the trial had been placed in the barrister's trust account. Apparently, one other barrister was given the brief at some point on Friday 20 March 2009 who returned it later that day. 26 Finally, at the hearing of the First Application, the Applicant's Counsel did not state for how long an adjournment was sought and, consequently, what would be done if an adjournment had been granted. No attempt was made to suggest an alternate way in which the case could or should be managed to final hearing and determination. 27 As Counsel for the Respondents submitted, not only did JL Holdings not support the granting of the adjournment in the circumstances of the present proceeding but there is a vast body of authority in this Court where applications for adjournments have been refused where the Applicant for the adjournment was in a far better position than the current Applicant: for example, in Salfinger v Niugini Mining (Australia) Pty Ltd [2008] FCAFC 102 at [13]-[20] per Finkelstein J (giving the judgment of the Court on the grounds of the application) an application for adjournment was refused where there was evidence of lack of funds and lack of necessary documentation to prosecute the appeal. See also AMI Australia Holdings Pty Ltd v Bade Medical Institute (Aust) Pty Ltd [2008] FCA 1783; Australian Securities and Investments Commission v Forestview Nominees Pty Ltd [2006] FCA 1628; Perpetual Trustees WA Ltd v Elderslie Finance Corporation Ltd [2008] FCA 1045; Priestley v Godwin [2008] FCA 1179; Vescio v Hon Kristina Keneally [2008] FCA 589; Westpac Banking Corporation v Tsatsoulis [2003] FCA 406. By way of contrast, an adjournment was granted in Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 920, where substantial evidence was led that thousands of pages of documents were provided to the Applicant on the eve of the trial as annexures to affidavits in circumstances where the Applicant could not reasonably have read these documents or be certain that relevant discovery had been completed. That is a long way removed from this case: see [22] to [26] above. 28 It is for those reasons that I refused the Applicant's First Application - the oral application for an adjournment of the part-heard trial. Although not relevant to the reasons for refusing the application, not only did the matter proceed to final hearing the next day but it proceeded with two Counsel appearing for the Applicant including Counsel who had made the four applications on behalf of the Applicant referred to above. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate: Dated: 1 April 2009 Counsel for the Applicant: Mr McKenna

Solicitor for the Applicant: Melbourne Legal Partners

Counsel for the Respondents: Mr Cawthorn SC and Ms Maud

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Cases Cited (21)