FEDERAL COURT OF AUSTRALIA

Aucare Dairy (Aust) Pty Ltd v Huang (No 2) [2018] FCA 1428

ORDERS

THE COURT ORDERS THAT:

1.    The application for adjournment dated 3 September 2018 be dismissed.

2.    Costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR RULING

DAVIES J:

1    The first respondent, Ms Huang, has applied for a 10 week adjournment of the hearing of this proceeding due to start today in order to fund and then properly instruct new lawyers to prepare and run her case and the cases of the third and fourth respondents. Ms Huang has supported her application by an affidavit that she swore on 31 August 2018 and an affidavit of Joseph Gerard Mulcahy sworn 31 August 2018. Mr Mulcahy is a solicitor in the firm of Russell Kennedy Lawyers, which has been retained by Ms Huang to assist her and the third and fourth respondents to make the application for an adjournment.

2    Ms Huang and the third and fourth respondents were legally represented up until 18 June 2018. Ms Huang deposed that since 19 June 2018, she has been attempting to secure legal representation but has encountered difficulty due to difficulties in funding the litigation. Most recently she has been in discussion with Russell Kennedy Lawyers to assume conduct of the matter. She deposed that she is at an advanced stage of discussions with an entity to secure funding for the litigation and has received verbal approval subject to execution of a formal agreement which she expects will be finalised within the next two weeks with a view to receiving funding within a week after signing the formal agreement. She further deposed that as her discussions with Russell Kennedy have only taken place over the past week they are not in a position to conduct the defence of this proceeding and her cross-claim on her behalf or on behalf of the third and fourth respondents at this time and accordingly she requests an adjournment of the hearing to enable her to finalise the engagement of Russell Kennedy Lawyers and to enable Russell Kennedy Lawyers to familiarise themselves with the issues in the proceedings. An adjournment of 10 weeks is sought for that purpose.

3    Ms Huang also deposed that without the adjournment she believes she will suffer prejudice by not having adequate legal representation as she has no legal training, English is her second language and her language skills are inadequate to enable her properly to be able to represent herself in this proceeding. She deposed that in particular she will be unable to assist the Court or adequately protect her own rights in terms of legal submissions, leading her own evidence or cross-examining the applicants or the ninth and tenth respondents.

4    Mr Mulcahy deposed that Russell Kennedy Lawyers are prepared to act on her behalf and on behalf of the third and fourth respondents if they are able to obtain funding for the litigation and an adjournment is granted. Mr Mulcahy further deposed that given the factual and legal complexities of the applicants’ case he believes there is no prospect that a lay litigant representing themselves in such a matter, let alone one with English as a second language like Ms Huang, could do so in a way which would either sufficiently assist the Court consistent with the provisions of s 37M of the Federal Court of Australia Act 1976 (Cth) or which would do justice to her own case. As a result he believes that Ms Huang would be irretrievably prejudiced were the matter not to be adjourned for a sufficient period and were she compelled to conduct her own case without the assistance of solicitors and counsel. As Ms Huang has estimated that it may take three weeks for her to finalise loan arrangements and obtain funding for the litigation Mr Mulcahy estimates that it will take him in conjunction with counsel 10 weeks properly to prepare for the adjourned hearing if an adjournment is granted.

5    The application for an adjournment was opposed by the applicants and the ninth and tenth respondents, essentially on the basis that the evidence about the funding which Ms Huang has claimed to have secured is wholly inadequate and the Court can have no confidence based on that evidence that the funding is certain and, if the adjournment is granted, that Ms Huang will secure legal representation. Senior counsel for the applicants submitted that the prejudice to the other litigants to the proceeding by a further delay must be considered in the balancing exercise.

6    I accept that this proceeding involves both factual and legal complexities and that Ms Huang will be in a much better position to protect her interests if she has legal representation. But I accept the submission for the applicants that the evidence falls well short of providing certainty that the funding sought by Ms Huang will become available and the purpose of the adjournment achieved. The evidence rises no higher than an assertion of an expectation that funding will become available, without providing any, let alone the level of, detail that would enable the Court to be satisfied that the expectation is well founded.

7    The paramount consideration in deciding whether to grant the adjournment or not is the administration of justice. Whilst undoubtedly for Ms Huang her interests are better served if she is able to be legally represented, the interests of the other parties to the proceeding must also be taken into consideration. Her lack of representation, even with the difficulties that it may present for Ms Huang in presenting her case, including her concern that her English skills are inadequate, does not dictate that the adjournment should be granted, as it is far from certain on the evidence that if the adjournment is granted Ms Huang will get the funding she requires in order to obtain legal representation. Although Mr Mulcahy respectfully believes that Ms Huang would not be able properly to represent herself in this proceeding, she may still be in that same position even if an adjournment is granted.

8    Ms Huang has been on notice since February of this year of the listing of the trial to commence today and has had some weeks to obtain funding for legal representation since her lawyers ceased to act for her. The lack of any explanation about what steps were taken by her until most recently to secure the funding, and the lack of detail about the funding arrangements that she believes she has secured, which rises no higher than an assertion of an expectation, points against the discretion being exercised in her favour. The evidence falls well short of what would be expected to persuade the Court that it would be appropriate at this very late stage to adjourn the trial, taking into account in the balancing exercise the prejudice to the other parties to the proceeding occasioned by a further delay in the hearing of these proceedings. As the evidence is wholly inadequate to satisfy the Court that Ms Huang will secure funding for her legal representation, the application, in the circumstances, should be refused. I take into consideration that Ms Huang has been assisted by lawyers in preparing that evidence and represented by senior and junior counsel on the adjournment application.

Associate:    

Dated:    26 September 2018

SCHEDULE OF PARTIES