Federal Court of Australia

Alhalek v Quintiliani trading as Kells Lawyers [2021] FCAFC 139

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The costs of the application for adjournment be costs in the cause.

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

REASONS FOR JUDGMENT

THE COURT:

1    At the commencement of the hearing of this appeal, Mr Horne of Aqua Law appeared for Mr Alhalek for the limited purpose of applying for an adjournment. That application was made orally and was unsupported by evidence. The application was refused for the reasons referred to below. Following the refusal of the adjournment application Mr Horne sought, and was granted, leave to withdraw on the ground that his retainer was limited as described.

2    This is the second occasion on which this appeal has been listed for hearing. The appeal was originally fixed for hearing on 26 May 2021. Shortly prior to that hearing, on 21 May 2021, Mr Alhalek informed the Court that he proposed to seek an adjournment as his lawyer had withdrawn from acting for him due to a last minute clash of commitments. Mr Alhalek was informed, through the Court’s Registry, that he was not entitled as of right to an adjournment and would need to file an interlocutory application, supported by evidence on affidavit, if he wished to apply for one.

3    On 24 May 2021, Mr Alhalek filed an affidavit in support of an application to adjourn the hearing of the appeal. The ground upon which the adjournment was sought was, in substance, that his lawyers were unable to act “due to unforeseen issues at their end.” On 25 May 2021, the Registry informed Mr Alhalek that, if he intended to press for an adjournment, he should file an interlocutory application and supporting affidavit. At about 5.05 pm that day Mr Alhalek filed an interlocutory application seeking an adjournment. At the commencement of the hearing on 26 May 2021, Mr Alhalek pressed his application. With reluctance, after Mr Alhalek offered further evidence orally, the Court allowed the application and made orders adjourning the appeal to a date to be fixed.

4    The following day, 27 May 2021, the Court sent an email to the parties requesting that they indicate their availability at the next Full Court sitting in August. The parties were requested to respond by no later than 12 pm on 31 May 2021. Mr Alhalek did not respond by that date. On 2 June 2021 he informed the Court that he was “in the process of engaging new lawyers & will advise in due course, at this point the earliest suitable date is 25th of August but most likely September.”

5    On 15 June 2021, the Court informed the parties that the appeal would be re-listed for 5 August 2021 at 9.30 am. Mr Alhalek responded to this email saying:

Noted, thank you. However, that is not a suitable date for me, as per my previous email. Please relist & advise.

6    By this email Mr Alhalek, in effect, asserted that he was entitled to have the appeal re-listed at a time which suited his convenience, “likely September”, notwithstanding that he was informed in the clearest terms that the appeal would be fixed during the Court’s calendar for Full Court sittings in August. By this time, at the latest, there was no basis for Mr Alhalek to believe that the Court would refix the appeal outside the August sittings of the Full Court.

7    Mr Alhalek refused to accept that the appeal would be listed in August and continued to assert, in effect, an entitlement, which he does not possess, to have the appeal refixed at his convenience. That conclusion is fortified by the events that followed.

8    On 17 June 2021, the Court responded to Mr Alhalek’s above email saying, amongst other things:

Having regard to the limited dates provided by you, and the workload of the Court during the August sittings, this matter has been listed for hearing on 5 August 2021. Should you request that the current hearing date be moved, then you are required to file an affidavit that sets out:

•    The steps you have taken to engage new lawyers following the hearing on 26 May 2021;

•    The identity and contact details of the lawyers you have engaged, or will engage, for the appeal; and

•    The reason why your new lawyers, or you, would have difficulty preparing the matter to be ready for hearing on 5 August 2021.

This affidavit will be referred to the Full Court for their consideration and must be filed by 4pm on Friday, 25 June 2021.

9    On 25 June 2021, Mr Alhalek filed an affidavit in which he deposed, amongst other things:

…[only] Ivan Hung from TY Lawyers in Chatswood was prepared to move forward and take on the case, however his earliest availability is post 25th of August 2021.

…

Ivan now awaits the success of this application for relisting before fully accepting my instructions.

In the alternative I will have to be self-represented if the current date is pressed.

I respectfully ask that the matter be relisted to allow representation.

10    On 29 June 2021, the Registry informed the parties that:

The Full Court is not minded to allow the adjournment request put forward by the appellant on the basis of the information so far received.

11    Mr Alhalek responded to that email on 29 June 2021 saying:

Noted, thank you.

I will progress the matter with Mr Hung.

12    Between 29 June 2021 and 14 July 2021, Registrar Van Le made several attempts to contact Mr Hung. On 14 July 2021, Mr Hung sent an email to Registrar Van Le saying:

I confirm Mr [Alhalek] has provided me with the Court Books, and after reviewed the Court Books, I have indicated to Mr [Alhalek] I would not be in a position to act for him in these proceedings. Mr [Alhalek] indicated he will immediately seek alternative legal representation.

(Errors in original.)

13    On 26 July 2021, the Court sent an email to Mr Alhalek saying, inter alia:

Please note that if you wish to request a further adjournment, you must file and serve an interlocutory application accompanied by an affidavit in support. There is no entitlement to an adjournment. The Court will likely require compelling evidence, particularly in circumstances where you have previously been granted an adjournment in this matter.

(Emphasis added.)

14    On 26 July 2021, Mr Alhalek responded to the above email from the Court saying:

I have a lawyer agreeing to proceed with my matter.

My lawyer, Ben will file the NOA today, he will seek adjournment of the matter to late August or September.

15    Later on 26 July 2021, at approximately 5:07 pm, Mr Horne of Aqua Law sent an email to the Court saying:

We have been retained to act for Mr Alhalek to act in these proceedings. We are in the process of preparing and will shortly lodge a notice of appearance.

We have arranged a conference with Counsel tomorrow morning and expect to be in a positon to update the Court thereafter.

16    On 29 July 2021, a Notice of Acting was filed by Aqua Law on behalf of Mr Alhalek. Shortly following receipt of this email, the Associate to the presiding Judge, Katzmann J, sent an email at approximately 4:21 pm on 29 July 2021 saying:

The above matter is listed before the Full Court on 5 August 2021 at 10:15am

17    The email also contained standard details in relation to the remote hearing of the appeal via Microsoft Teams.

18    On 3 August 2021, the Associate to the presiding Judge sent a further email to the parties providing the MS Teams link for the hearing and requesting appearance details.

19    Shortly before the hearing today, at approximately 9:35 am, Mr Horne sent an email to the Associate to the presiding Judge saying:

We refer to the above matter and advise that Mr Polese of Counsel is unavailable to attend today as he is engaged in another matter. The writer will be attending (ben@aqualaw.com.au) but we foreshadow to the Court that the applicant is not in a position to proceed. We apologise for the inconvenience to the Court.

20    As stated at the outset of these reasons, at the commencement of the hearing Mr Horne made an oral application that the hearing be adjourned. The application was not supported by any interlocutory application or evidence upon affidavit. Mr Horne indicated that his firm had only very recently been instructed and that his retainer, as we have said, was limited to making the application for an adjournment. Unsurprisingly, the application was opposed.

21    Mr Horne did not advance any cogent reason in support of the application to further adjourn the hearing of the appeal. The application was opposed by the Respondent, essentially on the ground that there was no evidence in support of the application nor any cogent explanation for such a late and unsupported application.

22    It is evident from the chronology of events set out above that Mr Alhalek was informed on several occasions that if he wished to apply for an adjournment, he was required to make a formal application and to support that application with cogent evidence. He was told in the email of 26 July 2021 that the Court would likely require “compelling evidence” if it were to accede to any application for an adjournment. No cogent reason was advanced in support of the application. No satisfactory explanation was given for the absence of evidence.

23    Given the context in which this application was made, noting in particular that it is the second occasion upon which this appeal was sought to be adjourned and the communications with Mr Alhalek which made it abundantly clear that the appeal would be fixed for hearing on 5 August 2021, the application was untenable.

24    Further, the dearth of evidence offered in support of the application and the approach taken by Mr Alhalek is contrary to the obligation imposed on the parties to conduct the proceeding in a way that is consistent with the overarching purpose of the civil practice and procedure provisions under which the Court operates: Federal Court of Australia Act 1976 (Cth) (FCA Act), s 37N. That purpose is to facilitate the just resolution of disputes according to law and “as quickly, inexpensively and efficiently as possible”: FCA Act, s 37M(1).

25    The background facts speak for themselves. Mr Alhalek has persistently refused to accept the clearest directions from the Court that any application for an adjournment must be made on notice pursuant to an interlocutory application and supported by compelling evidence. Despite being told shortly following the first adjournment on 26 May 2021 that the appeal would be listed in August, Mr Alhalek continued to assert that he was only able to retain lawyers to act for him after 25 August 2021, but more likely in September, outside the Court’s Full Court calendar.

26    Mr Alhalek’s persistent assertion that the appeal be heard no earlier than 25 August 2021, and more likely, in September, reveals a wilful refusal by Mr Alhalek to comply with his obligation under s 37N. Mr Alhalek’s conduct indicates that despite being told expressly that he has no “entitlement” to an adjournment, he nevertheless continued to conduct his appeal as if he had one. No litigant has such an entitlement, for the obvious reason that the business of the Court must be managed with the objective of efficiently organising the Court’s business in the interests of all litigants that come before it. That is clear from s 37M(2), which provides that:

Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

27    Moreover, the Court is bound to exercise its power to adjourn a proceeding in the way that best promotes the overarching purpose: FCA Act, s 37M(3). In the circumstances of the present case, no other order than the dismissal of the application was warranted.

Associate:

Dated:    5 August 2021