FEDERAL COURT OF AUSTRALIA

Scott v Handley [1999] FCA 404

PRACTICE AND PROCEDURE – appeal from refusal by trial judge of adjournment – exercise of Court’s discretion – role of appellate court – Crown as litigant – standard of conduct to be observed.

Judiciary Act 1903(Cth) s 39B

Social Security Act 1991 (Cth) s 100(2)

Administrative Appeals Tribunal Act (Cth) 1975 s 44

Sali v SPC Ltd (1993) 116 ALR 625 at 628-629 applied, 631, 635 referred to

Cropper v Smith (1884)26 Ch D 700 at 710-11 referred to

Queensland v J L Holdings Pty Ltd  (1997) 189 CLR 146 applied

R v Thames Magistrates’ Court, ex parte Polemis [1974] 2 All ER 1219 referred to

Squire v Rogers (1979) 27 ALR 330 at 337, 338 referred to

Sackville-West v Attorney-General (1910) 128 LT Journ 265 referred to

Maxwell v Keun [1928] 1 KB 645 at 650 referred to

Conroy v Conroy  [1917] 17 SR (NSW) 680 at 683 referred to

Neil v Nott (1994) 121 ALR 148 at 150 referred to

Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342 referred to

Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 at 166 referred to

Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 196-197 referred to

SCI Operations Pty Ltd v Commonwealth of Australia (1996) 69 FCR 346 at 368 referred to

Director of Public Prosecutions (Cth) v Saxon (1990) 28 NSWLR 263 at 267, 268 referred to

Kenny v State of South Australia (1987) 46 SASR 268 at 273 referred to

Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 558-559 referred to

P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 at 383-384 referred to

R v Tower Hamlets London Borough Council, Ex parte Chetnik Developments Ltd [1988] 1 AC 858 at 876-877 referred to

RALPH SCOTT and SOPHIE SCOTT v JR HANDLEY, SENIOR MEMBER, ADMINISTRATIVE APPEALS TRIBUNAL & SECRETARY, DEPARTMENT OF SOCIAL SECURITY

VG 593 and VG 594 of 1998

SPENDER, FINN and WEINBERG JJ

MELBOURNE

13 APRIL 1999

On appeal from a single judge of the Federal Court of Australia

THE COURT ORDERS THAT:

1.                       The appeals be allowed.

2.                       The orders of Heerey J of 15 October 1998 be set aside.

3.                       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 be remitted to Heerey J for directions for final hearing.

4.                       The costs of the hearing on 15 October 1998 be reserved to Heerey J.

5.                       The respondent Secretary, Department of Social Security pay the appellants’ costs of the appeals, if any.

On appeal from a single judge of the Federal Court of Australia

REASONS FOR JUDGMENT

THE COURT:

1                     These are appeals from orders of a single judge of this Court, Heerey J, who on 15 October 1998 ordered that each of two separate proceedings which were being heard together, VG 666 of 1996 and VG 69 of 1997, be dismissed, and that the applicants in those proceedings pay the second respondent’s costs. 

2                     In VG 666 of 1996 Mr Ralph Scott, the first appellant, was the applicant, and the Secretary, Department of Social Security was the respondent.

3                     In VG 69 of 1997 Mr Scott and Mrs Sophie Scott, the first and second appellants, were the applicants and JR Handley, Senior Member of the Administrative Appeals Tribunal (“the AAT”) and the Secretary, Department of Social Security were the respondents.

4                     In these appeals, the sole ground argued was that Heerey J had wrongly refused to accede to an application by the appellants that the proceedings be adjourned when the matters came before him on 15 October 1998.  Upon his Honour’s refusal to adjourn the proceedings, the appellants informed his Honour that they were not in a position to proceed, and did not advance any contentions in support of their respective applications.  His Honour accordingly dismissed those applications.

5                     It is necessary to set out something of the history of the proceedings in order to understand how the question whether or not to grant an adjournment arose before his Honour.  One preliminary observation which may be made is that these proceedings have had forests of paper committed to their prosecution.  There are elaborate pleadings, an application for discovery, and even the administration of interrogatories in what seem to us to be essentially short questions of judicial review.  The proceedings have been greatly complicated by a raft of contentions and side issues which, regrettably, Mr and Mrs Scott, who have been unrepresented throughout, have elected to pursue.

VG 666 of 1996

6                     Proceedings VG 666 of 1996 concern Mr Scott’s contention that notwithstanding that he was paid a Disability Support Pension from 5 October 1995, being the day on which he lodged a claim for such a pension, he should have been paid that pension from 19 June 1995.  This was the date on which he completed a Special Benefit Review form in respect of the Special Benefit he had been receiving.

7                     Later documents suggest that Mr Scott’s claim was varied to a claim to an entitlement to a Disability Support Pension from 1 January 1995, which was the date from which former refugees were given access to the Disability Support Pension without having to wait until ten years’ residency in Australia.

8                     Mr Scott arrived in Australia on 26 November 1986 as a refugee from Poland.  He was born in Poland on 12 April 1953.  Mrs Scott was born in Poland on 23 February 1962.  A claim for invalid pension by Mr Scott was refused on 28 August 1991 as he did not have, at that time, ten years' residence in Australia.  It was found, however, that he was medically qualified for that pension.  As at 1 January 1995 he was receiving Special Benefit.  On 5 October 1995 he lodged a claim for Disability Support Pension.  His claim was granted from 5 October 1995.  Mr Scott requested a review of the decision, initially seeking arrears of Disability Support Pension from 19 June 1995.  An authorised review officer reconsidered the decision to pay Disability Support Pension from 5 October 1995 and not from an earlier date, and affirmed that decision on 10 January 1996.  Mr Scott lodged an appeal to the Social Security Appeals Tribunal (“SSAT”) on 4 April 1996.

9                     The SSAT, in affirming the decision, said:

“At the hearing Mr Scott said that he was appealing against the decision not to grant him disability support pension from June 1995 as a matter of principle, rather than because he had lost out financially.  He told the Tribunal that he should have been advised by the Department in January 1995 to apply then for the disability support pension but was only advised in July 1995.  He applied in October because it took him that long to organise his medical reports.”

10                  The sole question before the SSAT concerned whether the Special Benefit Review form completed on 19 June 1995 was an ‘initial claim” for the purposes of s 100(2) of the Social Security Act 1991.  In fact, on 24 July 1995 the Regional Manager, Department of Social Security had written to Mr Scott informing him that:

“A recent review of your Special Benefit indicated that you may be entitled to Disability Support Pension.  In order to see if you are eligible please complete and return the enclosed claim form with three documents from the attached list as proof of identity within 14 days after this notice.

When you return the claim form, attach this letter to help us process your claim quickly.

Provided and (sic) there is no change in your circumstances, payment of Special Benefit will continue until we can make a decision about your claim for Disability Support Pension.

You will be advised of the result of your claim as soon as possible.”

The reference to the contention by Mr Scott that this was a “matter of principle” is made because it is in accord with much of what has since occurred, which gives the strong impression that to some extent this is all a delightful forensic game which the appellants have enjoyed playing.

11                  An application for a review by the AAT of the decision by the SSAT dated 3 June 1996, was received by the AAT on 5 June 1996. On 19 September 1996 the first respondent, Mr J R Handley, as Senior Member, affirmed the decision of the SSAT.  On 22 October 1996, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975, Mr Scott lodged an application in the Federal Court.  An amended notice of appeal was filed on 27 October 1997 pursuant to an order made by the Federal Court on 29 July 1997.

VG 69 of 1997

12                  Proceedings VG 69 of 1997 arise out of dealings between Mrs Scott and the Department of Social Security.  Until 30 June 1995 Mrs Scott had been receiving a partner allowance.  This stopped, as Mrs Scott no longer qualified under changes to the Act because, having been born on 23 February 1962, she was not born on or before 1 July 1955. 

13                  In a document dated 24 August 1995, headed ‘Reasons for Changing Decision to Reject Claim for Special Benefit”, an officer of the Department noted that “Mrs Scott’s claim for [Disability Support Pension] was rejected in 1993 as the available medical evidence did not support an impairment rating of 20%.”  That decision was affirmed by a review officer on 24 November 1993 and Mrs Scott had not appealed from that decision.  The document noted:

“The medical evidence provided by Mrs Scott only relates to physical conditions.  Both physicians who saw Mrs Scott at the department’s request indicated psychological issues needed to be addressed.  The AGHS medical officer stated on 6 October 1993 ‘I am still unable to give a definitive recommendation regarding work capacity as, in my view, a specialist psychiatric opinion is essential to making a fully informed recommendation.  My final assessment of permanent impairment and Combined value are also incomplete for the same reason.’ ”

14                  The document also noted “Mrs Scott refuses to attend a psychitric (sic) appointment”, which the Department had sought concerning her work capacity.  The document noted in its conclusion:

“Mrs Scott refuses to look for work, let alone contact the CES, so does not qualify for JSA [Job Search Allowance].  She does not appear to have any temporary medical conditions so SA [Sickness Allowance] is not appropriate.  She refuses to claim DSP [Disability Support Pension] again and does not qualify for DSP based on physical disabilities alone.  Her mental state could indicate psychiatric illness but Mrs Scott refuses to attend a specialist in this field.

I understand that by rejecting the special benefit claim, it was hoped Mrs Scott would be forced to claim DSP.  This has not worked.

Trusting that Mrs Scott is not manipulating the system by misrepresenting her mental state I believe the only option available is to pay special benefit on a short term basis…”

15                  On 9 September 1996 Mrs Scott appeared before Senior Member Handley in the Administrative Appeals Tribunal.  The advocate for the Department conceded before the AAT that Mrs Scott was qualified to receive the Disability Support Pension.  The Disability Support Pension was backdated to 28 January 1993.

16                  Proceedings VG 69 of 1997 were commenced with Ralph Scott and Sophie Scott as first and second applicants, J R Handley SM Administrative Appeals Tribunal as first respondent, and Secretary, Department of Social Security as second respondent.  The application was amended on 5 May 1998.  The application sought declarations that various decisions on the part of the second respondent, including the failure to provide the first applicant with the most appropriate payment, namely a Disability Support Pension, from 1 January 1995 until 24 July 1995, the failure to provide the second applicant with the appropriate payment, namely a wife pension, from 1 January 1995 until 24 July 1995, misleading the applicants “as to their most appropriate payments between 01 January 1995 and 24 July 1995” and the failure to provide any payment to the second applicant for the period of time between 1 July 1995 and 24 August 1995 until 1 September 1995 were in each case made ultra vires the Social Security Act 1991, and were contrary to law.

17                  The application also sought “Damages, including aggravated and exemplary damages, a total of not less than $500,000. - awarded against the Second Respondent to the First Applicant and to the Second Applicant”.

18                  A Full Court of the Federal Court on 3 October 1997 ordered that an order made on 10 April 1997 striking out par 4 of the applicants’ application be set aside and further ordered that the second respondent’s notice of motion filed 3 April 1997 be remitted to the trial judge for further consideration to be determined as thought appropriate by him.

19                  By a notice of motion dated 21 July 1998 in VG 69 of 1997 Mr and Mrs Scott sought declarations and orders as sought in the amended application.  That notice of motion also sought that certain paragraphs of the defence filed in answer to the Scotts’ statement of claim be struck out and, amongst other things, pursuant to proposed Order 5, that “the Applicants have leave to amend their Affidavit dated 12 June 1998 as stated in the proposed notice of amendments”.  The amendments sought appear from an affidavit of Mr and Mrs Scott dated 3 August 1998 to the effect that “…‘the Second Applicant’ has been mistakenly typed instead (sic)‘the Second Respondent’ in line 2, paragraph 13 of our affidavit dated 12 June 1998…”.  On 27 July 1998 Heerey J dismissed that part of the notice of motion concerned with striking out the defence, gave leave to administer interrogatories, and otherwise dismissed the notice of motion.  It seems from notes taken by an observer from the department that at the hearing on 27 July 1998 before Heerey J concerning the proposed Order 5, Mrs Scott said to Heerey J:

“…it’s an obvious typo.”

To which his Honour responded:

“Yes, there’s no need for any orders.”

20                  Notwithstanding his Honour’s response, and as an illustration of the attitude of Mr and Mrs Scott to these proceedings, on 3 August 1998 they filed a notice of motion seeking orders as follows:

“1.      If the Hon Justice Heerey decided that it was not appropriate to correct the error occurred (sic) in typing the applicants’ affidavit dated 12 June 1998 (the error)

Pursuant to Order 52 Rule 10 of the Federal Court Rules the leave to appeal from the part of the interlocutory judgment, given by the Hon. Justice Heerey on 27 July 1998 at Melbourne, by which it was decided that it was not appropriate to correct the error, be granted;

2.       If the leave of the Hon. Court to amend the error is needed

Pursuant to Order 52 Rule 10 of the Federal Court Rules the leave to appeal from the part of the interlocutory judgment, given by the Hon. Justice Heerey on 27 July 1998 at Melbourne, by which the leave to amend the error has been refused, be granted;

3.       In any event

Pursuant to Order 1 Rule 9 of the Federal Court Rules directions as to the appropriate procedure for amending/correcting the error be given.”

21                  On 10 August 1998 in a letter headed “notice of listing - ralph scott and sophie scott -v- secretary, department of social security & ors” the Listing Manager of the Court wrote to Mr and Mrs Scott in the following terms:

“Please note that the above proceeding has been listed for hearing in the Victoria District Registry of the Federal Court of Australia as follows:

docket judge:   justice heerey

time:                                    2.15pm

date:                                   15 October 1998

place:                     450 Little Bourke Street

                                  Melbourne Vic  3000

The estimated duration of the hearing is a half day.

Practitioners are to confirm this hearing with all other parties.

Should you have any queries in relation to this listing please contact me on (03) 9289 9337.”

[emphasis original]

The letter referred at the top to VG 666 of 1996 & VG 69 of 1997.

The proceedings on 15 October 1998

22                  On 9 October 1998 a solicitor on behalf of the Secretary, Department of Social Security wrote to the District Registrar in the following terms:

“I refer to the hearing of the above matter on 15 October 1998 and enclose for filing the affidavits of Mr Bill Burn, Ms Roberta Chrystal and Ms Toni Pedler of Centrelink.

2.     I would be grateful if you could confirm that the listing at 2.15 pm on 15 October 1998 will involve the following issues:

(a)          the applicant’s notice of motion dated 3 August 1998 concerning amendment of their affidavit dated 12 June 1998;

(b)          the respondent’s notice of motion dated 3 April 1997 concerning relief sought by the applicant’s notice of appeal under section 39B of the Judiciary Act 1903, which was remitted to this Court from the Full Court in its decision dated 3 October 1997;

(c)           the substantive hearing of matters VG666/1996 and VG69/1997.

3.              I note that the second respondent is concerned that this matter will not conclude on 15 October 1998.”

23                  On 9 October 1998 the solicitor, Mr Richard Knowles, personally served the applicants with the affidavits of Mr Burn, Ms Chrystal and Ms Pedler at approximately 3 pm.  9 October 1998 was a Friday.  Mrs Scott said to Mr Knowles that, in her opinion, the hearing on 15 October was only for the purposes of the notice of motion dated 3 August.  She was advised then by Mr Knowles that he had contacted the Registry, and that the Registry had confirmed that the substantive hearing, as well as the hearing relating to the notice of motion, would proceed on 15 October 1998.  Mr Knowles says that he advised Mrs Scott that the second respondent, the Secretary, was ready to proceed.  The Department would not consent to any adjournment sought by the applicants.  Mr Knowles told Mrs Scott that she should use the public telephone immediately to contact the Federal Court Registry Listings Manager, if she wished to seek an adjournment.  He also advised her to deliver a letter to the Court on 12 October to inform the Court of the applicants’ proposed action.

24                  A letter dated 12 October 1998 was sent by Mr and Mrs Scott to Heerey J.  The letter in part said:

“On 03 August 1998 the Applicants filed the Notice of Motion for directions pursuant to Order 1 Rule 9 of the Federal Court Rules and, conditionally, for leave - if needed (please, see the enclosed copy of the Official Receipt of the Federal Court).  The directions hearing was scheduled to be heard on 15 October 1998.

The Applicants have noticed that the Court may have considered the above-stated directions hearing as the final hearing.

For the sake of clarity, the Applicants are informing Your Honour that:

(a)           the Applicants are not ready for the final hearing yet;

(b)           the Applicants are not aware of any Request To Fix Date For Trial, regarding the proceeding No VG 69 of 1997, being filed and served.”

[emphasis original]

25                  On 15 October 1998, when the matter was called, Mrs Scott said to his Honour, at the outset:

“We have never asked for the hearing to be today.”

To which his Honour a little later responded:

“…well, I gave a direction that the final hearing of this matter was to be heard today.  Why do you say it should not be heard today?”

Then followed the discussion concerning the notice of listing and other matters, to which his Honour responded:

“I’m quite satisfied that it was made clear to the applicants that today would be the final hearing of this matter, whether or not there would also be any outstanding motions dealt with today, and I refer to the affidavit of Richard Colin Knowles sworn today.  So I propose to deal with the final hearing of this matter today and any outstanding notice of motion which the parties [wish] to raise today."

His Honour then entertained an application for an adjournment of the hearing on the basis, according to Mrs Scott, that “We are unready to present the main issues now, only the directions hearing.”

26                  Mrs Scott then applied for what she described as a “non-suit”, stating “We are not ready to proceed”.

27                  On the application on behalf of the respondents that both applications be there and then dismissed, his Honour said:

“I think if you’re not ready to proceed and if you haven’t made out a case for adjournment I must accede to counsel’s application that both applications be dismissed.  Do you have anything to say as to that?”

In response, Mrs Scott said amongst other things:

“Dismissal of this hearing will be detrimental to all five million people who are dealing with the Department of Social Security and who are very often in the situation similar to the applicants.”

His Honour said:

“I do not consider the matters that Mrs Scott has raised are relevant to the question I have to decide, which is to make an order that’s fair as between the Scotts and the department.  I won’t repeat what I’ve already said about the history of this matter.  I’m satisfied that a proper order is that both applications, VG 666 of 96 and VG 69 of 1997, be dismissed.”

28                  The substantive issue in these appeals is whether, in the light of the circumstances set out above, the trial judge’s refusal to grant the Scotts the adjournments they sought resulted in a miscarriage of justice: cf Sali v SPC Ltd (1993) 116 ALR 625 at 628-629.  We are constrained to the view that it did, though for reasons not brought to his Honour’s attention at the time.

The relevant legal principles

29                  For a judge to refuse an adjournment of the hearing of proceedings sought by the applicants on the day of the hearing on the basis that they are not in a position to proceed, and thereby to dismiss those proceedings, is a most significant step, not lightly to be taken.  The refusal of an application for an adjournment may, in some circumstances, involve a denial of procedural fairness.  In the absence of demonstrable prejudice to the respondents, why, it might be asked, cannot an adjournment on appropriate terms adequately protect the interests of those parties?  (cf in the context of amendment, Cropper v Smith (1884) 26 Ch D 700 at 710-11; Queensland v J L Holdings Pty Ltd  (1997) 189 CLR 146).

30                  In R v Thames Magistrates’ Court, ex parte Polemis [1974] 2 All ER 1219 a summons was served on the Greek master of a vessel at 10.30 am on a charge of discharging oil into navigable waters.  The summons was returnable at 2.00 pm on the same day.  An adjournment on that occasion was refused.  The English Court of Appeal said at 1223:

“…nothing is clearer today than that a breach of the rules of natural justice is said to occur if a party to proceedings…is not given a reasonable chance to present his case.  It is so elementary and so basic it hardly needs to be said.  But of the versions of breach of the rules of natural justice with which in this court we are dealing constantly, perhaps the most common today is the allegation that the defence were prejudiced because they were not given a fair and reasonable opportunity to present their case to the court, and of course the opportunity to present a case to the court is not confined to being given an opportunity to stand up and say what you want to say; it necessarily extends to a reasonable opportunity to prepare your case before you are called on to present it.  A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense.”

31                  In Sali v SPC Ltd (1993) 116 ALR 625, the majority (Brennan, Deane, McHugh JJ) said at 631:

“It is true that it is only in extraordinary circumstances that the interests of justice will be served by a refusal of an adjournment in a case such as the present where the practical effect of the refusal is to terminate the proceedings.”

The dissenting minority in Sali (Toohey & Gaudron JJ) said at 635:

“In Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569 Asprey JA said of a refusal to grant an adjournment of a civil action until later in the day, because of the unavailability of counsel:

‘An adjournment which, if refused, would result in a serious injustice to the party applying for it should only be refused if that is the only way that justice can be done to the other party.’”

32                  Nonetheless, it has to be recognised that the interests of the parties seeking an adjournment are not the only relevant consideration.  Justice is a two-way street with many persons seeking to use it.  Case management is but a means to the end of the attainment of justice.  So too are the Rules of the Federal Court; they are not an end in themselves.

33                  In Squire v Rogers (1979) 27 ALR 330, Deane J, with whom Forster J and Brennan J agreed, said at 337:

“The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances: Conroy v Conroy [1917] 17 SR (NSW) 680 at 682.  Its resolution may involve the assessment of competing claims by litigants in other cases awaiting hearing in the list of the particular judge or the particular court and may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing.  A court of appeal will not, as a general rule, interfere with the decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him.  This general rule is subject to any power of the particular appellate court to receive new evidence on the hearing of an appeal (see, for example, Federal Court of Australia Act 1976 s 27) and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion.”

Deane J referred to Sackville-West v Attorney-General (1910) 128 LT Journ 265.  In that case the English Court of Appeal said that it would be only in the most extraordinary circumstances that an application to review the decision of the learned judge as to the conduct of the business of his own court would succeed: the only case in which an appellate court would interfere would be one in which it was satisfied that the decision was such that “justice did not result” and the “trial judge had failed to see that such would be the effect of his decision”.

34                  The statement of principle in Sackville-West has been quoted with approval in a number of subsequent cases, including Maxwell v Keun [1928] 1 KB 645 at 650 and Conroy v Conroy  [1917] 17 SR (NSW) 680 at 683.  Deane J in Squire’s  case said (at 338) of the statement of principle in Sackville-West:

“It is of particular relevance to a case where the exercise of discretion has resulted in a refusal of an adjournment in that it recognizes the need to take into account, in considering the effect of a refusal to grant an adjournment, the control which the judge will enjoy over the action when it comes on for trial including, particularly in a case such as the present where no jury is involved, the power to deal with any particular applications for adjournments which may subsequently be made.”

35                  The majority of the High Court (Brennan, Deane & McHugh JJ) said in Sali at 628-629:

“In Maxwell v Keun [1928]  1 KB 645, at 650, 657, 658, the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party.  That proposition has since become firmly established and has been applied by appellate courts on many occasions.  See, for example, Walker v Walker [1967] 1 WLR 327, at 330;  Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569; Bloch v Bloch (1981) 55 ALJR 701, at 703; 37 ALR 55, at 58-9.  Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action: Walker [1967] 1 WLR, at 330; Carryer (1969) 90 WN (Pt 1) (NSW), at 569.  However, both propositions were formulated when court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become.

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.

Associate:

Dated: