FEDERAL COURT OF AUSTRALIA

Martinek v Evans [2003] FCA 1403

MARY-ANN MARTINEK V MARK EVANS

V 7 OF 2002

MARY-ANN MARTINEK V CHIEF OF ARMY

V 373 OF 2002

NORTH J

24 NOVEMBER 2003

MELBOURNE

THE COURT ORDERS THAT:

1.         The motion, notice of which was filed by the applicant on 3 October 2003, is dismissed.

2.         The applicant is to pay the respondent’s costs of and incidental to the motion.

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

REASONS FOR JUDGMENT

1                     On 18 December 2002, a decision was handed down by me in the matter of Martinek v Evans [2002] FCA 1584, which included the following orders:

‘2.        The applicant is to pay one-third of the respondent's costs of the applications, including the costs of the motions, notice of which was filed by the respondent on 19 June 2002.

3.         Liberty is reserved to the applicant to apply to vary the order made in paragraph 2 provided that she files and serves a notice in writing of her intention to do so by 15 January 2003.’

2                     Paragraph 3 was included following disagreement between the parties as to costs.  Despite succeeding on the application, in all of the circumstances of the case the respondents agreed to accept one-third of their costs.  Counsel for the applicant argued that each side should bear its own costs and indicated that evidence might be brought to support this position.  Order 3 was, therefore, intended to provide the applicant with an opportunity to argue against the position offered by the respondents. 

3                     No application was made to vary the order made in paragraph 2 by 15 January of this year. 

4                     On 3 October 2003, the applicant filed a notice of motion that, in essence, sought an extension of time within which to make the application to vary the order contained in paragraph 2. 

5                     The motion was listed for hearing on 20 October 2003.  On that occasion, the applicant sought an adjournment in order to obtain legal advice.  The matter was adjourned until 24 November 2003. 

6                     On 24 November 2003, the applicant sought a further adjournment, again in order to obtain legal advice.  In an affidavit filed with the Court on the day of hearing, she set out conscientiously and thoroughly all relevant information in support of that application.  She described in detail the steps that she had taken to obtain legal advice, and referred to difficult personal circumstances during the year. 

7                     Whilst, as a general principle, the Court is sympathetic to such personal circumstances and to the endeavours which the applicant has made to obtain legal representation, it is appropriate in this case to refuse the application for an adjournment.  A central factor in considering such an application is the chance of success of the applicant’s principal application.  In this case, I am of the view that the applicant should not have an extension of time for compliance with paragraph 3 of the orders made on 18 December 2002. 

8                     It is clear from the notice of motion, and the contents of the affidavit in support, that the applicant seeks to use the order in paragraph 3 to re-agitate issues which were determined by the decision of 18 December 2002.  That was not the purpose of the order in paragraph 3, and it does not therefore justify any extension of time. 

9                     It has been explained to the applicant that she is entitled to have the respondent’s bill of costs taxed which will provide her with some protection that the order in paragraph 2 will be carried out appropriately. 

10                  Consequently, the adjournment is refused and the motion, notice of which was filed by the applicant on 3 October 2003, is dismissed.

11                  In making these orders, I note that the applicant has represented herself in this matter with dignity and competence.  It is a matter of regret that the applicant appears unable to resolve in her own mind the underlying problems relating to her employment in the Australian Defence Force as she is clearly a person with great capacity.  Her talents could be more usefully directed than at the cause which she seeks to pursue again by this notice of motion.

Associate:

Dated:              2 December 2003