The hearing dates
17 The active defendants resisted the application to vacate the further hearing dates set down for 7 to 11 August 2023.
18 Section 37M of the Federal Court of Australia Act 1976 (Cth) requires the Court, when exercising its discretion in deciding whether or not to grant an adjournment, to do so in a manner which best promotes the over-arching purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. As I noted in Ghougassian v The Trustee of the Property of Ghougassian, in the matter of Ghougassian (a bankrupt) [2023] FCA 503, the Full Court of this Court in Dahdah v Platinum Distributors Australia Pty Ltd [2023] FCAFC 65 at [166] (Rangiah, Goodman and McElwaine JJ) explained that:
(1) the over-arching purpose includes as objectives: the just determination of all proceedings before the Court; the efficient use of the judicial and administrative resources available for the purposes of the Court; the efficient disposal of the Court's overall caseload; the disposal of all proceedings in a timely manner; and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute;
(2) no litigant has an entitlement to an adjournment for the obvious reason that the business of the Court must be managed with the objective of efficient organisation in the interests of all litigants that come before the Court: see Alhalek v Quintiliani trading as Kells Lawyers [2021] FCAFC 139 at [26] (Katzmann, Derrington and Anastassiou JJ);
(3) when matters are set down for hearing on a particular day there is an expectation that they will be heard on the day on which they are set down: see Gabrielle v Abood (No 2) [2023] NSWCA 28, Bell CJ (Kirk and Adamson JJA agreeing) at [6]; and
(4) adjournment applications are typically only granted where there are cogent reasons for doing so.
19 In Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75, the Full Court of this Court (Collier, Griffiths and Mortimer JJ (as her Honour then was)) said at [42] to [46]:
42 In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction, here its appellate jurisdiction, including the objectives in s 37M(2) of the FCA Act, to which we have referred earlier in these reasons in summary form.
43 These objectives set out in statutory form some of the considerations earlier expressed as conditioning a discretion to adjourn a hearing. In Sali v SPC Ltd (1993) 116 ALR 625 at 629, Brennan, Deane and McHugh JJ said the Court is entitled to be conscious of the "effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties".
44 In Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, the plurality of the High Court recognised four matters which should, in the circumstances of that particular case, have been taken into account by the Court when exercising its discretion whether to grant an adjournment so as to allow substantial amendments to be made to the statement of claim. Those factors were: the explanation for the adjournment sought (at [108]), the parties' choices to date in the litigation (and the consequences of those choices) (at [112]), the detriment to other parties, and the detriment to other litigants in the Court (at [114]).
45 In Aon at [5], French CJ referred to the broader considerations at work in considering an adjournment application:
In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.
46 The plurality in Aon expressed a similar opinion at [93]:
[T]he rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants.
20 The starting point in my consideration was the explanation provided by the plaintiffs for seeking the adjournment and the potential prejudice to the plaintiffs if an adjournment were not to be granted. Given the overlap between these factors, I considered them together.
21 Dr Pandey's evidence and submissions put forward, in essence, the following reasons for an adjournment:
(1) he had to terminate the retainer of the plaintiffs' solicitors in circumstances where they required payment of fees at short notice; they declined to provide him with an estimate of future costs and they threatened not to represent him if he did not agree with their requirements;
(1) he wished to have the opportunity to obtain new legal representation in circumstances where he is not equipped to present the plaintiffs' case because he lacks legal qualifications and experience and because he suffers from severe hypertension;
(2) since July 2022 he has been requesting the plaintiffs' legal representatives to place before the Court particular evidence which he suggested may have a "huge bearing" on the outcome of the proceeding and they have not done so; and
(3) his objective is to settle the case as soon as possible.
22 The contemporaneous written evidence before me on this application did not support the contentions set out in [21(1)] above. Rather, the evidence suggested that the solicitors for the plaintiffs: (1) provided a costs estimate on 23 June 2023; (2) when requested, on 19 July 2023, to provide a cost estimate indicated that they had done so on 23 June 2023; and (3) on 18 July 2023 put the following proposal:
Provided that sufficient finance has been applied for, the firm is willing to continue acting and defer payment of future invoices until around 11 September 2023, provided that Nitin agrees to:
1. continue paying $5,000 per week in satisfaction of our outstanding invoices;
2. sign a formal acknowledgement of debt in respect of our outstanding invoices;
3. provide a charge over his personal and real property as security for our costs; and
4. immediately pay the balance of our outstanding costs upon receipt of finance on or around 11 September 2023
23 The nub of the dispute between the plaintiffs and their solicitors appears to be the refusal of the plaintiffs to provide security for the payment of the plaintiffs' solicitors' fees. Whilst Dr Pandey contended that the plaintiffs could not have been expected to provide such security in circumstances where the solicitors for the plaintiffs required payment at short notice and had declined to provide him with an estimate of costs, the evidence did not establish that either of those circumstances had occurred. Rather, the decision to terminate the retainer appeared to have been made by Dr Pandey because he and NPPL were not prepared either to provide funds in advance or to agree to terms deferring payment which required a form of security. It was clear from the evidence before the Court that it was Dr Pandey and not the solicitors for the plaintiffs who acted to terminate the retainer. To the extent that the solicitors for the plaintiffs indicated that they required some form of security (whether it be by way of payment into a trust account, or security over assets) for payment of their fees in order for them to continue to act, particularly in circumstances where an estimate of costs had been provided on 23 June 2023, I did not regard such indications as unreasonable.
24 I accepted that a likely consequence of the refusal of the application is that Dr Pandey, who lacks legal qualifications and experience, will need to conduct the remainder of the hearing on his own behalf (and to the extent that leave is granted, on behalf of NPPL) or to find new legal representatives prepared to take on the plaintiffs' case at very short notice, and that as a result, the plaintiffs would be prejudiced. However, such prejudice would be a direct result of Dr Pandey's choice to terminate the retainer of the plaintiffs' former solicitors. Further, as Hallen J noted in Videnovic v Todorovic [2023] NSWSC 242 at [73], a self-represented litigant cannot be allowed to stand behind the shield of his or her own lack of knowledge, particularly when the consequence is prejudice to the other parties to the proceeding and to the Court's limited resources. The prejudice to the active defendants and other litigants, are considered at [30] and [31] below.
25 As noted above, Dr Pandey claimed to suffer from severe hypertension. However, as the active defendants submitted, the evidence in support of this claim was inadequate, not rising above the level of bare assertion. The desirability of verified evidence from a medical professional as to the condition of a person claiming to be ill and how that condition affects them in their preparation for a hearing has previously been noted by the Full Court of this Court in Luck at [48] to [50] and Kennedy v Secretary, Department of Industry (No 3) [2016] FCAFC 149 at [34(3)] (Flick, Jagot and Bromwich JJ).
26 Dr Pandey also relied upon his desire to adduce further evidence from himself as a reason for an adjournment. This desire did not provide a sound basis for an adjournment, particularly in circumstances where: (1) Dr Pandey had discussed the inclusion of such evidence with his legal representatives since July 2022; (2) Dr Pandey gave evidence at the hearing in March 2023 and was cross-examined at length by counsel for the active defendants; (3) it may readily be inferred that a forensic decision had been made by the plaintiffs' legal representatives by the time of the March 2023 hearing not to adduce the further evidence from Dr Pandey; (4) for the further evidence now to be introduced would require the service of a further affidavit from Dr Pandey and an application to recall him to the witness box, which application will likely be met by submissions that the active defendants would be prejudiced by the (very) late service of such evidence and by the active defendants having already made forensic choices concerning the cross-examination of Dr Pandey on the basis that his prior affidavit evidence comprised the universe of his affidavit evidence; and (5) Dr Pandey had not identified, even generally, the nature of the evidence that he wished to adduce or why it may have a "huge bearing" on the outcome of the proceeding.
27 Dr Pandey also relied upon his desire to resolve the proceeding. Such a desire is to be encouraged, however, it did not provide a basis for an adjournment of the resumption of the hearing. I considered that there had been ample opportunity during the course of this proceeding for a resolution to have been reached and that opportunity remained open despite the refusal of the application for an adjournment.
28 Thus, in summary, I was not persuaded that any of the reasons provided by Dr Pandey in support of his application, or that the likely consequences if an adjournment was not granted, were of sufficient moment to justify an adjournment of the hearing.
29 This was particularly so, when the interests of the active defendants and other litigants were taken into account.
30 In this regard, I took into account that: (1) the proceeding has been on foot, and the restraints the subject of the orders made by Justice Jagot in place, since late 2020; (2) the dispute concerns claims of oppression in an ongoing business; and (3) if an adjournment had been granted, the first dates available to the Court to continue the hearing would not have been until April 2024. In the circumstances, the active defendants were entitled to expect that the hearing continue and conclude within the further time allotted (7 to 11 August 2023). The prejudice to the active defendants if the completion of the proceeding had been deferred (again) was obvious.
31 Finally, but not insignificantly, I also considered the prejudicial consequences for the Court and for other litigants: see Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 at 321 [51] (French CJ, Kiefel, Bell, Gageler and Keane JJ); Alhalek at [26]; Gabrielle at [6]). In particular, the prejudice to other litigants awaiting hearing dates, which prejudice would have flowed from the vacation of the hearing dates and the allocation of fresh dates.
32 For the above reasons, I refused the plaintiffs' application to vacate the hearing dates but acceded to their application to vacate the mediation.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.