FEDERAL COURT OF AUSTRALIA

Wilson v Alexander [2003] FCA 240

PAUL WILSON v CHARLES ALEXANDER (PARTNER OF MINTER ELLISON)

N 50 OF 2002

JACOBSON J

11 MARCH 2003

SYDNEY

THE COURT ORDERS THAT:

1.            The application for an adjournment is refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This matter is part heard before me.  It was adjourned on Friday, 8 November 2002 to resume today.  The matter has been fixed for a further 3 days.  I have allowed what seems to me to be more time than might otherwise be necessary in order to ensure that the case is completed within the allocated time.

2                     When the matter was called on for hearing this morning, Mr Wilson informed me from the bar table that he wishes to have an adjournment in order to pursue an application for legal aid.  I am told by Mr Michael Green of counsel for the respondents that this was also the first notice to him of any such application.

3                     The request to legal aid for assistance was made in a letter which has not been tendered in evidence.  Mr Wilson informs me that the application letter was dated 24 February 2003.

4                     On 5 March 2003 the Legal Aid Commission wrote to Mr Wilson refusing his application for legal aid.

5                     I think it is convenient that I set out for the purposes of the record the full text of the letter as follows:

“Dear Mr Wilson

Refusal of Legal Aid Application

Matter                         Other Matters

Court                          Federal Court

Representative

Your application for legal aid has been carefully considered and has been refused under section 34(1) of the Legal Aid Commission Act 1979 because:

It does not meet the priorities and guidelines set by the Commonwealth for legal aid for civil matters arising under Commonwealth laws.

Aid is available, subject to a means test, merit test, and guidelines, for original proceedings in the Federal Court or for appeals in the Full Court of the Federal Court and the High Court where it is considered that there are strong prospects of substantial benefit to be gained by the applicant.

The Commission is not satisfied that these requirements are met in this case.

Please quote the Commission’s file number on all correspondence.

Appeal Rights

Section 56 of the Act provides that you may appeal to the Legal Aid Review Committee against the decision to refuse legal aid.

This right of appeal does not apply to some specific reasons for refusal.  If your application has been refused for such a reason, the fact that it is not appellable is stated immediately after the reason itself.

The appeal must be in writing and must be lodged within 28 days of you receiving this letter.  Where there are special circumstances the Review Committee may extend the 28 day period.

Section 57 of the Act provides that an applicant for legal aid is entitled to an adjournment if they have appealed or intend to appeal to the Legal Aid Review Committee and the Appeal is genuine and there are no special circumstances.

Yours faithfully

Peter Mcdougall

For Legal Aid Commission”

6                     As can be seen from the letter from the Legal Aid Commission, the Commission states that it is not satisfied that the requirements set down by the Commonwealth for legal aid for civil matters are met in this case.  It is true that the letter informs Mr Wilson that the legislation provides for a right of appeal against a refusal of legal aid.  However, I do not see that that is a reason for granting an adjournment of a part heard matter which was stood over for many months to enable whatever steps needed to be taken by Mr Wilson in order to have the matter ready for hearing.

7                     There is a further reason why it seems to me to be inappropriate to grant an adjournment of this case on the grounds sought by Mr Wilson.  The matter of legal assistance was raised by Mr Wilson in a directions hearing in September or October of last year.  As Mr Green, has pointed out, the issue of Legal Aid has been "on the cards" since about August or September of last year and it seems to me to be too late now to be requesting the Court to adjourn part-heard proceedings which were, as I have said, stood over for a lengthy period, of some four months, to enable Mr Wilson to prepare for the hearing.

8                     Mr Wilson conducted the hearing for two days in person before me on 7 and 8 November 2002.  It is apparent that he was unable to obtain Legal Aid, or other legal assistance for the initial part of the hearing.  I do not see that in the circumstances that I have outlined above, it is appropriate to adjourn these proceedings and accordingly the application for an adjournment is refused.

9                     Mr Wilson informed me from the bar table that he spoke yesterday with a solicitor from Legal Aid, who told him that the matter would be adjourned and that on that basis he has come to the Court unprepared.  There was no basis whatsoever for Mr Wilson to act upon the advice, if given to him, by such a solicitor.  There is no solicitor on the record who has status to give any advice.  Nor would such advice be controlling upon the conduct of this litigation.

10                  Mr Wilson, it is apparent, took it upon himself on what he has said to me today to come here unprepared, notwithstanding, what I said on the last occasion, ie. the 8 November 2002, when I listed this matter for hearing.  I said on that occasion:

“Now, I don't want this matter to be part heard again after the resumption next year.  I propose to set aside enough time to ensure that the case is completed.” (at  p 172 of the transcript)

11                  In the course of giving judgment Mr Wilson interrupted me, so that it is now necessary to supplement my oral reasons for judgment.

12                  I wish to add two things to the judgment.  First, Mr Wilson relied on the Legal Aid Commission Act 1979 (NSW) which was referred to in the letter of 5 March 2003.  I am not bound by that Act because it is a matter of State legislation but I took into account the considerations raised in the statute.

13                  Second, although I did not say so specifically in my judgment, it was evident to me that the circumstances in which the application for legal aid was made gave rise to an inference that Mr Wilson’s purpose in seeking legal aid so late in the course of these proceedings was to improperly hinder or improperly delay the conduct of the proceedings before me; see Legal Aid Commission Act 1979 s 57(b).

Associate:

Date:                24 March 2003