In determining whether to grant an adjournment, the judge of a busy court is entitled to consider 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."
36 In this case, a detailed consideration of the matter has led us to the conclusion that his Honour Heerey J was perfectly entitled to reject the protestations of the appellants that they were ignorant of the fact that the listing of the proceedings for 2.15 pm on 15 October was for the substantive determination of the proceedings. On the basis of the information that was placed before his Honour, it was plainly open to reject the contention by the Scotts that the unpreparedness on their part to present their case was the fault of others, including officers of the Court. Were this the sole basis upon which the appellants presented this appeal it would certainly not succeed.
37 Unfortunately, there were circumstances which, in our view, should have been brought to his Honour's attention on the application for the adjournment, but which were not. It is those circumstances to which we now turn.
38 As earlier indicated, both before his Honour and more extensively before this Court, Mrs Scott submitted that their cases were not ready to be, and should not have been regarded as ready to be, set down for final hearing on 15 October 1998. Her justifications for this submission related both to matters allegedly of procedure and to the terms of the notice of listing. Though she went on to claim at first instance that she and her husband were "not ready for the final hearing yet", his Honour would in the circumstances be pardoned for having assumed that Mrs Scott was doing no more than reiterating her view that, because the matter was not intended to be, nor should it have been, listed for final hearing, they had not prepared for such a hearing.
39 The ground of appeal to this Court and the argument presented to us have, however, made plain that the Scotts' lack of preparedness was attributable as well to another much more significant cause. At a directions hearing on 27 April 1998 the trial judge had ordered the respondents "to file and serve any affidavits on or before 17 July 1998". Far from complying with this direction, the second respondent served the appellants with three affidavits, two containing annexures of roughly thirty and twenty pages respectively, on 9 October 1998 - a mere six days before the hearing, on the Friday afternoon preceding that hearing. This was a default of almost three months.
40 There is nothing in the transcript of proceedings before his Honour to suggest he was informed of this default, or of its possible significance in the preparation of the appellant's case. The likelihood is that he was not. Certainly Mrs Scott failed to articulate with any clarity the prejudice which this late provision of affidavit material might have occasioned to the case to be presented by herself and her husband. Importantly the second respondent took no steps to inform the Court of the default.
41 Counsel for the second respondent has sought before us to minimise the apparent significance of the default by asserting that 'virtually everything' in the affidavits was in some fashion or other within the knowledge of the Scotts. We are unable to accept this submission. To the extent that the affidavits both denied malice on the part of the deponents concerned (and thereby put directly in issue evidence concerning one of the central planks of the Scotts' case), and contained exhibits that were print-outs of payments made, they contained matter that was new. Mrs Scott has complained before us that she did not have sufficient time properly to analyse and respond to the affidavits. Not without some misgivings, we cannot see how that contention can be rejected.
42 There are two considerations to which particular regard should be had in this matter. The first is that the appellants were unrepresented litigants; the second, that the second respondent was an officer of the Commonwealth. As to the first of these, we need not labour here the difficulty that the litigant in person can pose for a trial judge trying to ensure that the system of civil litigation functions fairly and justly in the circumstances. As the High Court observed in Neil v Nott (1994) 121 ALR 148 at 150, the Court's endeavours to ascertain the rights of self represented parties are, often enough, "obfuscated by their own advocacy." We note immediately that we find no fault with his Honour's conduct of the hearing on 15 October nor with the conclusions he arrived at given the understandable assumption he appears to have made as to the time the appellants had to prepare for a final hearing. In refusing the adjournment application, his Honour observed that "[the appellants] had adequate time to prepare their case". The fault in the matter lies, in our view, with the second respondent, which brings us to the second consideration to which regard must be had.
43 The second respondent is, as we have noted, an officer of the Commonwealth. As such he properly is to be expected to adhere to those standards of fair dealing in the conduct of litigation that courts in this country have come to expect - and where there has been a lapse therefrom, to exact - from the Commonwealth and from its officers and agencies. The spirit of this "model litigant" responsibility, now long enshrined in a policy document of the Commonwealth, is perhaps best captured in the observations of Griffith CJ in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342:
"I am sometimes inclined to think that in some parts - not all - of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken."
44 Insistence upon that standard is a recurrent theme in judicial decisions in this country in relation to the conduct of litigation by all three tiers of government: see eg Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 at 166; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 196-197; SCI Operations Pty Ltd v Commonwealth of Australia (1996) 69 FCR 346 at 368; Director of Public Prosecutions (Cth) v Saxon (1990) 28 NSWLR 263 at 267; Kenny v State of South Australia (1987) 46 SASR 268 at 273; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 558-559; P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 at 383-384; see also R v Tower Hamlets London Borough Council, Ex parte Chetnik Developments Ltd [1988] 1 AC 858 at 876-877.
45 As with most broad generalisations, the burden of this fair dealing standard is best appreciated in its particular exemplifications in individual cases. The courts have, for example, spoken positively of a public body's obligation of "conscientious compliance with the procedures designed to minimise cost and delay": Kenny's case, above, at 273; and of assisting "the court to arrive at the proper and just result": P & C Cantarella Pty Ltd v Egg Marketing Board, above, at 383. And they have spoken negatively, of not taking purely technical points of practice and procedure: Yong's case, above, at 166; of not unfairly impairing the other party's capacity to defend itself: Saxon's case, above, at 268; and of not taking advantage of its own default: SCI Operations Pty Ltd, above, at 368.
46 In the present instance the second respondent (i) was in a position of obvious advantage in relation to unrepresented litigants; (ii) was significantly in default in complying with procedures designed to secure the fair and orderly preparation of the matter for hearing; (iii) served the affidavits on the appellants at an extremely late date with the consequential likely impairment of their capacity to prepare properly for a final hearing; (iv) did not inform his Honour of the default and of its possible consequences; and (v) took advantage of the inability of the appellants to articulate properly the basis for, and to secure, an adjournment. In our view the conclusion is inescapable that the second respondent has fallen considerably short of the standard properly to be expected of the Commonwealth.
47 The Court is conscious and appreciative of the assistance it regularly receives from officers and agencies of the Commonwealth particularly in matters in which the other party to litigation is unrepresented. Regrettably, such did not occur in this case. The consequence was, in our opinion, a miscarriage of justice.
48 During the course of the present hearing counsel for the second respondent acknowledged that had Mrs Scott's submission in this Court been put to his Honour, he would have been hard put to resist an adjournment. That concession was properly made. We agree. The second respondent ought to have informed the trial judge of the default. Had this been done, his Honour would have had a different appreciation of the time the appellants had available to them to prepare for the hearing. He may well, and probably would, have taken an entirely different view of the adjournment application.
49 In these circumstances the appeals must be allowed and the orders of Heerey J of 15 October 1998 must be set aside. The notice of motion of the appellants dated 3 August 1998, the second respondent's notice of motion dated 3 April 1997 concerning relief sought by the appellants under s 39B of the Judiciary Act 1903 remitted by the Full Court by its orders of 3 October 1997, and the trial of proceedings VG 666 of 1996 and VG 69 of 1997 should be remitted to Heerey J for directions for final hearing. The costs of the hearing on 15 October 1998 should be reserved to Heerey J, and the respondent Secretary, Department of Social Security should pay the appellants' costs of the appeals, if any.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.