Patrick v Wadoon Pty Ltd

5. It is necessary to recite the procedural history of the matter.

6. The Application was filed on 20 March 2006.

7. A first directions hearing was held before Federal Magistrate Raphael on 5 July 2006, at which hearing the applicant was directed to file points of claim by 18 September 2006. The matter was adjourned to 25 September 2006 to enable Patrick to deal with a Legal Aid application which was made by him.

8. On 25 September 2006 the matter was adjourned to 9 October 2006 with Patrick to file and serve an affidavit or affidavits in support of the application by 5 October 2006.

9. On 9 October 2006 further orders were made, including an order that Patrick:

File and serve amended points of claim, giving full particulars in admissible form of all allegations of sexual harassment on or before 23 October 2006.

The matter was also set down for hearing on 11 and 12 December 2006.

10. On 23 November 2006 the hearing dates of 11 and 12 December 2006 were vacated and an order made that the matter be listed for three days, which were not set, in January 2007. The reason for vacation of the hearing date is not evident from the Court's order (and there is nothing surprising in that), although the vacated hearing dates were ordered to be used for mediation before a Registrar of this Court. The orders made on 23 November 2006 by Federal Magistrate Raphael anticipated that another Federal Magistrate would ultimately hear the matter.

11. The Court, as presently constituted, heard the matter on 19 December 2006 for directions. The matter was listed for hearing, not in January 2007 but on 1 to 4 May 2007. The parties were also directed to file written submissions on or before 24 April 2007_._

12. Patrick filed the written submissions late, the day before the hearing was due to commence. Those submissions "raised a fundamentally new issue" concerning Patrick's allegedly being asked for sexual favours by some Rapid Haulage employees. The Court found that the allegation was a "serious one which it is, in the proper interests of justice, to be properly put before the Court". There was no evidence of the allegations before the Court in Patrick's earlier filed affidavits nor was it otherwise properly particularised. The Court reluctantly granted leave to Patrick to amend the application and points of claim and for other consequential programming orders to take effect. The Court noted Patrick's past non-compliance with various orders of the Court and said that if Patrick did not file the application in its amended form and the points of claim in amended form, the application would be dismissed for non-compliance with the orders. The Court re-listed the matter for four days from 25 to 28 September 2007.[4]

13. On 12 June 2007 the Court had a further directions hearing and Rapid Haulage sought dismissal of the application for alleged non-compliance with the 1 May 2007 orders. In an endeavour to assist Patrick, the Court referred the matter to a Registrar of the Court for referral to a lawyer on the pro bono panel for legal assistance on an urgent basis. The hearing was re-listed to the currently listed dates of 20 to 23 November 2007 and otherwise adjourned to 6 July 2007 for directions in the hope that pro bono assistance would be forthcoming. Regrettably, no pro bono assistance was forthcoming.

14. On 6 July 2007 the Court raised with the parties the prospect of a litigation guardian being appointed for Patrick. Orders were made to allow for the filing of affidavits and submissions concerning the possible appointment of a litigation guardian and the matter was adjourned to 30 July 2007. No potentially suitable litigation guardian was found and the issue was not pressed in any meaningful way on 30 July 2007.

15. It is relevant to note that although the Court adverted to the possibility and indeed the desirability in all the circumstances of the appointment of a litigation guardian, it made no findings on the issue. The Court certainly did not find that, "it was necessary", that Patrick, "acquire a litigation guardian to assist during trial".[5] Thus on 30 July 2007 certain further procedural orders were made and a listing for 20 to 23 November 2007 was confirmed. That was where the matter stood until the Adjournment Request Letter was received in the Court's Adelaide Registry on 11 October 2007.

16. In determining the application for adjournment, the Court must have regard to:

a) case management considerations; and

b) the potential prejudice to both sides in the granting or rejection of the application for adjournment.

17. Case management considerations do not override considerations of justice, but justice requires that fairness be afforded to all parties in the litigation. Prejudice must take account of all of the circumstances of the case, including its litigation history insofar as that is relevant.[6]

18. From a case management perspective, this case is overdue for trial. The application was made more than 18 months ago. Almost all of the cases heard by this Court are heard and decided well before 18 months has elapsed.[7] That is consistent with the Court's obligations particularly under s.42 of the Federal Magistrates Act 1999 (Cth) and insofar as they are relevant, ss.3 and 14 of that Act and the relevant rules related to those provisions of the Act.

19. The Court, as presently constituted, has endeavoured to case manage a difficult discrimination case as sensitively and carefully as possible. Patrick has, despite various non-compliances, been extended more than the usual procedural indulgences even for a self-represented litigant in this Court. The Court has also endeavoured along the way to frame orders to facilitate:

a) Legal Aid applications,

b) pro bono assistance; and

c) the possible appointment of a litigation guardian.

20. In that respect, the specific reasons for which an adjournment are sought in relation to acquiring a litigation guardian and obtaining further Commonwealth funding must fail. Not only have they been previously tried, but the resurrection of them, as it were, as grounds for an adjournment come rather late in the day.

21. The Court also notes that this is a case which has now been listed for hearing on four separate occasions over a period of 11 months come November 2007. It cannot possibly be the case, in the Court's view, given the state of the evidence which has already been filed and the procedural history of the matter, that there can be an extensive amount of work to be done, as is said in the Adjournment Request Letter. This is simply a case, in that sense, which will have to be tried on the evidence which is presently available.

22. There comes a point in time where every case must be heard, settled or discontinued. From a case management perspective, this case is at that point, and in the absence of settlement or discontinuance, this case ought to be heard.

23. Patrick will suffer prejudice at hearing. So do most self-represented litigants. Patrick's disposition, as it appears to the Court from the hearings which have been held, might mean that his prejudice is perhaps greater than the average self-represented litigant. However, the evidence is, as already indicated, essentially in. There is no great difficulty in Patrick's evidence being tendered or presented to the Court. It will be more difficult for Patrick in terms of submissions and cross-examination. However, submissions, and the Court stresses submissions on the evidence, can always be put in writing if oral presentation is a problem, and that is a course which is regularly adopted by self-represented litigants who do not feel confident enough to stand and address the Court.

24. Cross-examination is more problematic, and Patrick will, like most self-represented litigants in this Court, simply have to make the best possible attempt if the matter is to proceed. It is preferable, of course, that the assistance of Counsel in a case such as this be afforded to the applicant. The Court notes in that regard that proper efforts are ongoing. At the end of the day, this is a Court where self-represented litigants regularly appear with all of the challenges that that sometimes entails. The Court also has well developed principles concerning the manner in which the Court and deals with self-represented litigants, and the Court will, of course, apply those principles in this case if Patrick is self-represented.[8]

25. Rapid Haulage has suffered prejudice in this case. These are serious allegations and they ought to be heard and decided. The matter has been listed for hearing on four separate occasions including 20 to 24 November 2007. On one of those occasions, 1 May 2007, the matter had been got up fully for the expected hearing which did not proceed. It is manifest that Rapid Haulage has suffered prejudice in terms of the cost of preparation: not just for one hearing fully got up, but also the inevitable preparation of the other two adjourned dates and the forthcoming dates.

26. There is also prejudice in terms of witness recall. Whilst this case may be one in which the alleged nature of the discrimination might enable better recall than usual, it is nevertheless the case that witnesses memories do fade over time, the detail is lost, and the devil disappears with that loss of detail.

27. The events alleged are now several years old and it is better and, in the Court's view, less prejudicial to all concerned, if the matter is heard sooner rather than later. As indicated, Rapid Haulage is entitled to be able to answer the claims and allegations that have been put against it.

28. Given the delays that have already occurred in the hearing of this matter, it would be more prejudicial to Rapid Haulage than to Patrick if the matter were again adjourned, particularly as sought to March 2008.

29. In the circumstances, the Court proposes the application for adjournment be dismissed, and so orders.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lucev FM

[4] See generally Patrick v Wadoon Pty Ltd [2007] FMCA 663

[5] As was stated in the Adjournment Request Letter.

[6] See generally Mahmoud v The Owners Corporation Strata Plan 811 [No.2] [2006] FMCA 1711 at para 7 per Lucev FM.

[7] In 2005-2006 96 per cent of all cases heard by this Court had judgments delivered within six months of hearing, and 99.5 per cent within 12 months: Federal Magistrates Court of Australia, Annual Report 2005-2006 at 5.

[8] See, for example, Bartucciotto v Western Health Care [2007] FMCA 26; (2007) 94 ALD 387 at 393-394 per Lucev FM; [2007] FMCA 26 at paras 34-37 per Lucev FM.