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[2012] FCA 1219
Federal Court of Australia
2012-11-05
McKerracher J
Original judgment source is linked above.
INTRODUCTION 1 I have before me an application by Mr Vincent O'Donoghue (the applicant) for a four month adjournment of this proceeding. The applicant is self-represented and incarcerated. His adjournment application is opposed by the respondents, who are represented by the Australian Government Solicitor. The proceeding is currently programmed for a final hearing on 6 December 2012. For the reasons that follow, I am minded to exercise my discretion to grant a brief two week adjournment but not for the length of time that the applicant seeks.
PROCEDURAL HISTORY 2 At the first directions hearing on 11 September 2012, I made the following programming orders: 1. The applicant file and serve any affidavits in support of the application by 30 October 2012. 2. The respondents file and serve any affidavits in response by 14 November 2012. 3. The application be listed for hearing on 6 December 2012 at 10.15am. 4. The applicant file and serve an outline of submissions 14 days prior to the hearing. 5. The respondents file and serve an outline of submissions 7 days prior to the hearing. 6. The parties have liberty to apply to vary these orders. 7. Costs be in the cause. 3 On 13 September 2012, the applicant wrote to the Court stating the following: The time allowed is too short in the circumstances and I was unaware of and did not fully appreciate the time frame set out in His Honours (sic) directions and orders during the directions hearing on 11 September 2012. 4 The applicant also indicated that the hearing date of 6 December 2012 would not be suitable but did not provide particulars. 5 On 21 September 2012, in response to a query from my chambers, the respondents stated that they were not in a position to respond as the applicant had provided neither a reason for the proposed variance nor an alternative timetable or date. 6 On 26 September 2012, the Court wrote to the applicant, copying the respondents, requesting him to provide an outline of reasons for seeking a different hearing date and a minute of proposed orders at his earliest convenience. 7 On 3 October 2012, the Court received a letter from the applicant stating the following: Given that there is no urgency in the matter and given that the matter has been before the Courts for some eight years now, and more importantly given that there are many important issues which arise, and given that I am representing myself and given that there are many other matters before the Courts of which the Commonwealth is aware or ought to be aware, and that the Commonwealth is not prejudiced or adversely affected in any way by an extension of time, an appropriately suitable date will be a date not before April 2013 and a further Directions Hearing to be held in March 2013. There are simply no adequate facilities in Hakea Prison to assist or ensure compliance with strict time frames and the Applicant is engaged in other legal proceedings in regards to breach of promise and breach of undertaking to provide a lap-top for personal use in order to assist with the preparation of legal materials. The history of this matter will show that the Commonwealth will object for the sake of objecting. 8 On 4 October 2012, the Court wrote to the respondents, copying the applicant, asking if they had any response to this letter and, in particular, if they were opposed to adjourn the matter to a directions date in March 2013. The correspondence also stated that I was minded to grant a short adjournment but not for the full length of time sought by the applicant, subject to hearing from the respondents. 9 On 9 October 2012, the applicant wrote to the Court, copying in the respondents: Given that no detriment could reasonably be said to, or be expected to flow from any extension of time which [his Honour] is minded to grant, the interests of justice require that such an extension is granted. Justice must be done and be seen to be done. Given the circumstances of the applicants (sic) incarceration and the provision of wholly inadequate facilities to assist in the preparation of the case, and given that the unreasonable, unfair and unjust pressures and demands are imposed on the applicant by the Federal Court in other matters, an adjournment would save the Honourable Court both valuable time and money. 10 The applicant invited me to re-list the matter for directions. 11 On 15 October, the respondents wrote to the Court, copying the applicant, stating that they did not agree to a variation of the orders. They stated that while they would not have objected to a modest extension of time, they note that the applicant seeks the matter be listed for hearing after April 2013. The respondents further submitted that in their view 'the application is a relatively straightforward matter and there is no adequate justification for the excessive delay sought by the applicant'.
NATURE OF THE ORIGINATING APPLICATION 12 By originating application filed on 17 August 2012, the applicant seeks judicial review of a decision of the first respondent, the Australian Information Commissioner, of 20 July 2012 not to, or to refuse to investigate, the applicant's complaint against the second and third respondents, the Department of the Attorney General and the Attorney General respectively, under the Freedom of Information Act 1982 (Cth). 13 The applicant relies on the following grounds in support of his application: 1. In making the decision of 20 July 2012, the first respondent erred in fact and in law. 2. In making the decision of 20 July 2012, the first respondent relied on incomplete and erroneous information provided by the second and third respondents. 3. Rules of natural justice, procedural fairness and due process were not adhered to by the first, second and third named respondents. 4. The decision of 20 July 2012 was made without the knowledge or consent of the applicant. 5. The first, second and third respondents have by their collective conduct demonstrated perceived and actual bias toward the applicant. 6. The conduct of the first, second and third respondents will result in and lead to a miscarriage of justice. 14 The applicant seeks the following relief: 1. An order setting aside the decision of the first respondent dated 20 July 2012. 2. A declaration that the first, second and third respondents have individually and or collectively breached their respective duties and obligations under the Freedom of Information Act 1982 (Cth). 3. Such further and other Orders as the Court may deem fit. 4. Costs and damages.
CONSIDERATION OF ADJOURNMENT APPLICATION 15 The granting of an adjournment is discretionary in nature. Section 37M(1) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) provides that the object and purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes (a) according to law and (b) as quickly, inexpensively and efficiently as possible. Section 37N of the FCA Act provides that parties to a civil proceeding before the Court must conduct the proceeding in a manner that is consistent with the overarching purpose. 16 While the applicant stresses that application raises 'many important issues', I accept the respondents' submission that the application for judicial review is relatively straightforward in nature. 17 Moreover the applicant has also not put on any formal evidence to support the granting of such a lengthy adjournment. 18 As Gilmour J noted in disallowing a similar adjournment application in O'Donoghue v Australian Information Commissioner (No 2) [2012] FCA 1152 (at [9]): … there is a very real public interest in the timely disposition of matters before this Court, where the respondents… are also entitled to a timely resolution of the case. It is not to be forgotten that properly understood, it is Mr O'Donoghue who is the prosecutor in this matter. He is the applicant. He ought to be taken to know the nature of his case and he will have had some three months since filing his application for judicial review to prepare for the hearing on the date which I have fixed. 19 I also note a recent decision of the Court of Appeal of England and Wales, Tinkler v Elliott [2012] EWCA Civ 1289 in which Kay LJ, with whom Munby and Lewison LJJ agreed, in the context of an application by a self-represented litigant to set aside a default judgment, noted: I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person… 20 Similarly in this case, while the applicant is self-represented and incarcerated, with limited access to computer facilities, these facts do not automatically entitle him to a lengthy four month adjournment of the final hearing. On the basis of the applicant's timely correspondence with the Court in this proceeding, I have formed the view that the applicant is abundantly capable of preparing submissions and affidavit material in support of his application and filing them by facsimile. While I note that the applicant's communications appear to have been prepared on a word processor, the applicant also has the option of preparing submissions and affidavits by hand. 21 To strike an appropriate balance, I propose to grant the applicant a two week adjournment of the final hearing and will adjust the programming orders made on 11 September 2012 as follows: 1. The applicant file and serve any affidavits in support of the application by 14 November 2012. 2. The respondents file and serve any affidavits in response by 28 November 2012. 3. The application be listed for hearing on 20 December 2012 at 10.15am. 4. The applicant file and serve an outline of submissions 14 days prior to the hearing. 5. The respondents file and serve an outline of submissions 7 days prior to the hearing. 22 Orders will be made accordingly. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.
O'Donoghue
Australian Information Commissioner