FEDERAL COURT OF AUSTRALIA

Vasiljkovic v The Honourable Brendan O’Connor [2011] FCAFC 112

THE COURT ORDERS THAT:

1.    The application for an adjournment is refused.

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

REASONS FOR JUDGMENT

KEANE CJ

1    The appeal which the Court was listed to hear today was originally set down for hearing in April of this year. In a letter of 16 May 2011 the parties were advised that the matter had been listed for hearing on 22 August 2011, being today’s date.

2    The matter was listed for hearing on the footing that Senior Counsel would be available to represent Mr Dragan Vasiljkovic (the appellant) on the hearing of the matter. It subsequently emerged that counsel was no longer available, and on 14 July 2011 the appellant’s legal representatives advised the first, second, third and fifth respondents (the respondents) that Senior Counsel was no longer available and that the appellant wished to change the hearing date until October this year. The respondents opposed that course.

3    On 22 July 2011, the appellant’s solicitors filed a notice of motion seeking an adjournment of the hearing of the appeal. That notice of motion has been called on and submissions have been made in support of the application by Mr Dennis on behalf of the appellant.

4    The proceedings which gave rise to the appeal, which is due to be heard today, were commenced in September 2010. They were dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).

5    The matters in issue are, it is accepted, within short compass. Mr Dennis is available to argue those matters should the adjournment be refused.

6    The appellant has had ample opportunity to seek to engage other Counsel, but there is no evidence of what inquiries, if any, have been made or the result of those inquiries.

7    No explanation has been given as to the circumstances in which Counsel, who was available to appear, has ceased to be available to appear.

8    The unavailability of Counsel of the party’s choice is not, of itself, a reason to grant an adjournment. It can not be said that this is a case in which the matter is so complicated that Counsel, who was previously engaged, should be afforded another opportunity to appear in order to prevent prejudice to his or her client. There is, however, the prospect of prejudice to the respondents. They have incurred expense which, by reason of the appellant’s circumstances, it appears that they would be unlikely to recover if an order for costs were made in their favour on the granting of the adjournment. More importantly, the request for extradition, which has given rise to these proceedings, was made in 2006. It is a matter of considerable concern that the request has not yet been responded to in any final and definitive way by the present time.

9    The circumstances, which include the circumstance of an absence of explanation for the unavailability of Counsel and of evidence of the inquiries that have been made, are such as to leave one without any real confidence that an adjournment would result in the appellant being represented at a later date. I am inclined to conclude that the grant of an adjournment might not serve any useful purpose in any event. This is particularly so, when regard is had to the delays which have already occurred in these proceedings, and the strong desirability of reaching some form of conclusion in relation to the request which has been outstanding since 2006.

10    I am disposed to refuse the application for an adjournment.

Associate:

Dated:    26 August 2011

REASONS FOR JUDGMENT

DOWSETT J

11    I agree with the reasons of Keane CJ.

Associate:

Dated:    26 August 2011

REASONS FOR JUDGMENT

JESSUP J:

12    I agree with the reasons of Keane CJ.

Associate:

Dated:    26 August 2011