FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Reid [2004] FCA 1506

PRACTICE AND PROCEDURE – adjournment application – failure to comply with directions – application refused.

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v MAXWELL JOHN REID

VG 3023 of 1992

LANDER J

22 NOVEMBER 2004

ADELAIDE

THE COURT ORDERS THAT:

1.         The application for an adjournment of the hearing is refused.

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

REASONS FOR JUDGMENT

1                     On 18 November 2004 the respondent applied for the adjournment of the hearing of this matter which is scheduled to commence on 22 November 2004.  Late in the evening of 18 November 2004 I refused the application for an adjournment.  There follows my reasons for doing so.

2                     The applicant commenced these proceedings by Notice of Motion on 17 November 2003 seeking the following orders:

‘1.        that the respondent be committed to prison or otherwise punished for contempt of Court for contravening the order of the Honourable Justice Jenkinson made on 10 March 1992 that the respondent be prohibited, pursuant to section 230 of the Corporations Law, until 10 August 2036 from managing a corporation; or in the alternative

2.         that the warrant ordered by the Honourable Justice Kenny on 12 February 2002 to lie on the Court file be executed; or in the alternative

3.         that the respondent be committed to prison or otherwise punished for contempt of Court in respect of his breach of the undertaking provided by him to the Honourable Justice Kenny on 8 October 2001 that he would not be involved in the management of a company in any form at all in the future;

4.         that the respondent pay the applicant’s costs of and incidental to this motion on an indemnity basis; and

5.         such further or other orders as the Court deems appropriate.’

3                     Accompanying the Notice of Motion, as required under O 40 r 6 of the Federal Court Rules (the Rules), was the Statement of Charge which claimed that the contempt committed by the respondent was wilful and contumacious insofar as:

‘1.        in breach of paragraph 1 of the order of the Honourable Justice Jenkinson of this Court, made on 10 March 1992, wherein the respondent was prohibited from managing corporations until 10 August 2003, the respondent has been involved in the management of the following corporations:

1.1       Battstone Australia Pty Ltd between about 3 March 2003 and 3 June 2003; and

1.2       Australian Marble Pty Ltd between about 1 February 2003 and 14 July 2003; and

2.         in breach of an oral undertaking provided to the Honourable Justice Kenny on 8 October 2001 that he would not be involved in the management of a company in any form at all in the future, the respondent has been involved in the management of the following corporations:

2.1       Battstone Australia Pty Ltd between about 3 March 2003 and 3 June 2003; and

2.2       Australian Marble Pty Ltd between about 1 February 2003 and 14 July 2003.’

4                     The matter first came before me on 9 December 2003 when the respondent appeared in person.

5                     Mr Reid told me that he would be engaging solicitors but he had not, to that point of time, had sufficient time to procure funds and sought an adjournment until January 2004 to do so.

6                     I ordered him to file any affidavits upon which he intended to rely by 30 January 2004 and adjourned the directions hearing until 17 February 2004.

7                     In the meantime, the applicant began proceedings (S3009 of 2003) against the respondent and four other respondents under s 1324 of the Corporations Act 2001 (Cth) and ss 22 and 23 of the Federal Court of Australia Act 1976 (Cth) seeking orders in the following terms:

‘1.        An order that the first defendant be restrained from engaging in conduct that contravenes a provision of section 206A of the Corporations Act 2001 and in particular that he be restrained from doing any act that forms part of the negotiations with respect to, or the purchase of, any business, company or asset by, for or on behalf of any corporation.

2.         Orders that each of the second, third, fourth and fifth respondents be restrained from engaging in any conduct that amounts to aiding abetting counselling or procuring a contravention of section 206A of the Corporations Act 2001 by the first respondent within the meaning of section 11.2 of the Criminal Code and in particular that they each be restrained from doing any act or engaging in conduct that expressly or implicitly authorises or permits the first respondent to take part in or have any involvement in the negotiations with respect to, or the purchase of, any business, company or asset by, for or on behalf of any corporation of which they are a director.

3.         Such further or other orders as the Court considers appropriate.

4.         Costs.’

8                     I will not trace the history of that matter except to say that between the date of commencement of those proceedings and now each of the respondents apart from Mr Reid have consented to orders of the kind sought in the originating proceedings.

9                     The applicant, therefore, is proceeding only against Mr Reid.  That matter is also listed for hearing on 22 November 2004 and was also the subject of the adjournment application.  Its fate depended on the fate of the application in these proceedings.

10                  The order made on 9 December 2003 requiring the respondent to file any affidavits upon which he intended to rely was not complied with.  On the adjourned directions hearing on 17 February 2004 the respondent was represented by Mr Winter, solicitor, who advised the Court that he had not then been formally retained and the terms of his retainer had not been finalised but that he expected to represent Mr Reid generally.

11                  I was told that Mr Reid intended to file responding material and to defend the charges brought in the Notice of Motion.

12                  During the directions hearing on 17 February 2004 the following exchange took place:

‘[LANDER J]:            I might list it to allow you one further chance to file any affidavits before the hearing.

MR REID:                   Thank you Your Honour.

[LANDER J]:             The hearing will go on whether you file your affidavits or not.

MR REID:                   I understand that.

…

[LANDER J]:             The week of 5 April seems to be available.

MR REID:                   I would be more than happy to commit to that.’

13                  I made the following orders:

‘1.        Extend the time within which the respondent has to file any affidavits upon which he intends to rely for a further period of 28 days.

2.         Direct the parties to advise each other of those deponents to affidavits filed by the opposing parties whom they wish to cross-examine at the hearing of the matter.

3.         Set the matter down for hearing on 22 and 23 April 2004.

4.         Liberty to apply.’

14                  The matter was called on again on 12 March 2004 when Mr Reid appeared unrepresented, although Mr Winter claimed to appear as amicus curiae.

15                  At the request of Mr Reid I made the following orders:

‘1.        Extend the time within which the respondent has to comply with the orders made by me on 9 December 2003 and 17 February 2004 for the filing of affidavits in response to the applicant’s application until 29 March 2004 at 4.00pm.’

16                  On 8 April 2004 this matter and Action No. S3009 of 2003 were called on yet again.  The fourth and fifth defendants in Action No. S3009 of 2003 had agreed to injunctions in the terms of the orders sought in the originating process in that matter.

17                  Mr Reid did not attend and I directed the applicant to advise Mr Reid that both matters would be called on again on 16 April 2004.

18                  During the directions hearing on 8 April 2004, counsel for the applicant advised the Court that the applicant had obtained further material in respect of the Notice of Motion in these proceedings and in Action No. S3009 of 2003 but that, because Mr Reid had been interstate, the Australian Securities and Investments Commission (ASIC) had been unable to serve him.  It was noted that it was therefore unlikely that the hearing could proceed on 22 and 23 April 2004.

19                  Mr Reid appeared when the matter came on again on 16 April 2004.  At that time he told me that he had spoken with Mr Terry Forrest QC, senior counsel in Melbourne, who advised him that he would be free in July.  I was also told that Mr Reid would be retaining Mr Winter as his solicitor.

20                  Mr Reid told me that in those circumstances he wanted the matter to be adjourned on 22 April 2004.  Clearly, the matter could not proceed because the applicant had introduced new evidence.  However, I was not satisfied that Mr Reid had made himself ready for trial in any event.  I therefore made the following orders:

‘1.        Direct Mr Reid to file any affidavit upon which he intends to rely to establish:

a.         That he has instructed a solicitor;

b.         That counsel has been retained;

c.)        The evidence which he intends to adduce in answer to ASIC’s evidence

by 12pm on Thursday, 22 April 2004.

2.         Adjourn the further directions hearing of the matter until 23 April 2004 at 9am.’

21                  As has been the case with all previous directions made by me, those directions were not complied with.

22                  When the matter was called on again on 23 April 2004 Mr Christoforou, of Christoforou, Klotz & Co, appeared for Mr Reid.

23                  Mr Christoforou advised the Court that Mr Reid had instructed him on 22 April 2004.  His instructions were that Mr Reid expected to receive funds on 23 April when he would be formally retained.

24                  I made the following orders:

‘1.        Extend the time within which the respondent Reid has to file any affidavits in answer to the applicant’s affidavits until Monday 7 June 2004.

2.         Set the matter for hearing on 28 and 29 June 2004.

3.         The respondent Reid to advise the applicant prior to 7 June 2004 whether he wishes to cross-examine any, and which, deponents to the affidavits relied upon by the applicant.

4.         Liberty to all parties to apply.

5.         Costs in the cause.’

25                  On 30 April 2004 Mr Christoforou wrote to my associate in the following terms:

‘We refer to the above matter and advise that Mr Maxwell [sic] has failed to place our firm in funds.

Accordingly, pursuant to the intimation sought from the writer by His Honour, Justice Lander, we advise that we have informed Mr Reid that we no longer act for him, although we did indicate that we would consider acting for him if funds became available.’

26                  Shortly before 22 June 2004, I became available to commence the hearing on Friday, 25 June 2004 rather than the nominated date of 28 June 2004.

27                  I therefore held a further directions hearing on 22 June 2004 to enquire of the parties whether any of the parties in this action, or the parties still remaining in Action No. S3009 of 2003, would be prejudiced by my commencing the hearing of the action on Friday, 25 June 2004 rather than Monday, 28 June 2004.

28                  Mr Winter again appeared for Mr Reid, who was also in court.

29                  I was advised by Mr Winter that he was not retained generally in the matter but that he had been retained for the purpose of the directions hearing.

30                  He advised me that Mr Reid was still endeavouring to procure funds to enable him to obtain solicitors and counsel and conduct his defence.

31                  Mr Winter’s instructions were that Mr Reid expected that the funds should be available within approximately two weeks.

32                  In those circumstances, Mr Winter sought an adjournment of the hearing of the matter for a period of two weeks.

33                  The application was opposed and it was refused.

34                  Mr Reid said that if the application were refused he would not be embarrassed by being required to commence the proceedings on Friday, 25 June 2004 rather than 28 June 2004.

35                  Late on 24 June 2004 the Registry received a facsimile letter from the respondent’s wife, Mrs Edna Reid addressed to me in the following terms:

‘I am writing to you tonight on behalf of my husband Maxwell Reid who is supposed to be at a hearing before you at 9:15am tomorrow Friday.

Included with this fax are letters from our family doctor and from DR Jones & Partners (Medical Imaging Report).

On behalf of my husband I am asking for an adjournment until after the 03/09/2004 because of Max’s inability to concentrate on what is being said and happening around him because of his severe back pain and headaches.  Professor Robert Fraser will make a judgment on what can be done with my husband’s spine to relieve the pain and headaches when he sees him; the earliest appointment we could obtain was at 2.40pm on the 3^rd Sept. 2004.

May I suggest that our family doctor make another assessment on my husband’s condition (say in one month’s time) and report to you?

At this stage there is a likelihood that Max could become an invalid at any time and I am sure I do not want that to happen to him.

I do have the x-rays if you wish to view them?’

36                  Accompanying that letter were two medical reports; the first, from Dr Balendran, a general practitioner dated 23 June 2004 to the effect that Mr Reid was having persistent lower back pain for which he was waiting to see Professor Fraser for treatment; and the second, a radiologist’s report from Dr Simmons of Dr Jones & Partners dated 24 June 2004 to the effect that Mr Reid was suffering from:

‘Grade 1 anterior spondylolisthesis of L5 on S1 with possible stretching/compression of the L5 nerve roots as they pass laterally around osteophytes/disc just lateral to each exit foramen.  These changes are more marked on the right.’

37                  The letter and medical reports were, apparently, received by the Registry staff after hours on 24 June 2004 and did not come to my notice until early on the morning of 25 June 2004.  The medical reports did not suggest that Mr Reid was unable to conduct his trial.  They suggested only that he had some back pain for which he was to obtain a specialist opinion.

38                  At my request, my associate wrote to Mrs Reid in the following terms:

‘I refer to your correspondence of 24 June 2004, received on the Court’s  fax machine this morning, 25 June 2004.  The correspondence has been brought to Justice Lander’s attention.

These matters are listed for hearing at 9:15am.  Mr Reid should be present.  If he wishes to apply for an adjournment, he can make that application to Justice Lander at that time.’

39                  The matter was called on on 25 June 2004 but Mr Reid did not appear.  Mr Smith, who is a respondent in Action No. S3009 of 2003 and a friend of Mr Reid’s, did appear.

40                  During the course of the morning, an application was made by ASIC for the issue of a warrant for Mr Reid’s arrest.

41                  Later that morning I was advised by Mr Smith that he had spoken to Mr Reid and that Mr Reid was aware that a warrant was to be issued for his arrest.

42                  On 25 June 2004 I issued a warrant for Mr Reid’s arrest to bring him before the Court to answer the charge of contempt by detaining him in custody in the meantime, unless by paying the sum of $5,000 into Court he gave security for his appearance in person.

43                  Apparently, Mr Reid has also been charged with offences for which he was arraigned in the District Court.  He also did not appear at a hearing in the District Court and a warrant was issued by a judge of that Court for his arrest.  On 3 August 2004 he was arrested pursuant to the District Court warrant.

44                  On 4 August 2004, whilst Mr Reid was in the City Watchhouse being detained on the warrant issued out of the District Court, the warrant issued out of this Court was executed.

45                  On 11 August 2004 the matter came on again before me and Mr Reid was brought from custody at the Adelaide Remand Centre.

46                  He advised me that he had applied for legal aid and sought an adjournment of the matter generally.  The matter was adjourned until 25 August 2004 to enable Mr Reid’s legal aid application to be processed.

47                  From information that was provided to me on the hearing of this application, I now know that on 11 August 2004 Mr Reid did, in fact, apply for legal aid to cover not only the proceedings in the District Court but also the charge of contempt in these proceedings.

48                  On 25 August 2004 the matter was called on when Mr Amey, of counsel, appeared for Mr Reid.  Mr Amey indicated that Mr Reid wished to make an application for bail and the matter was adjourned until 3 September 2004 to enable him to do so.  Of course, this Court does not grant bail.  This Court is empowered under O 40 r 9 of the Rules to require a party for whom a warrant has been issued to pay a sum by way of security for that party’s attendance at the further hearing.

49                  On 3 September 2004 the matter was further adjourned until 9 September 2004 to enable Mr Reid’s application for bail in the District Court to be dealt with.  The oral application made by Mr Amey in this Court was adjourned.

50                  Although Mr Reid continued to seek what he and his counsel called ‘bail’, in fact, what was sought was an order providing for a sum for security for his attendance at further Court hearings.  This was the sixth occasion that I had directed or extended time for Mr Reid to file his affidavit material.  He had not complied with any of my previous directions.

51                  In any event, on 9 September 2004, I dealt with the matter generally:

‘1.        The respondent to file any affidavits in opposition to the applicant’s affidavits within 28 days.

2.         The respondent to notify the applicant of the applicant’s deponents that he wishes to cross-examine within 42 days.

3.         In the event that no notification is given, the applicant may proceed upon the affidavits.

4.         Adjourn the further directions hearing to 9.30am on 26 October 2004.

5.         Set the matter down for hearing in the week of 22 November 2004.’

52                  This was the sixth occasion that I directed or extended time for Mr Reid to file his affidavit material.  He had not complied with any of my previous directions.

53                  Mr Reid has been on notice since 3 September 2004 that the charge of contempt would be heard in the week of 22 November 2004.  So also, of course, has Mr Amey, although Mr Amey was only appearing on 3 September 2004 to seek an order for security.

54                  During my absence on leave the matter was called on on two occasions, being 17 September 2004 and 23 September 2004 before Selway J.  On both occasions, Mr Amey appeared and so also did Mr Reid.  On both occasions the matter was further adjourned because Mr Reid was unable to put any material before the Court in support of an application for an order for security.

55                  On 8 October 2004 Fleurieu Law, solicitors, wrote to ASIC on behalf of Mr Reid advising that Mr Reid required all deponents to be present for cross-examination in the substantive hearing.  ASIC was also advised that Mr Reid did not intend to file any affidavit material but intended to give his evidence orally.  The letter continued:

‘I ask you to note that due to our inability to take proper instructions from Mr Reid whilst he is in custody, we may be instructed to seek to vacate the existing trial date.  It has simply been impossible for us to have the time necessary to take instructions and fully investigate the matter, due to the restrictions placed on our client while in the Remand Centre.  If so instructed we will seek to vacate the trial date, to a date in the future.’

56                  The matter was called on again on 26 October, 27 October and 2 November 2004.  Mr Reid and his counsel, Mr Amey, appeared on each occasion.

57                  The adjournments on 26 and 27 October 2004 were occasioned by Mr Reid’s inability to put any information before the Court which would support his application for security.  On 2 November 2004 Mr Morris, who was a friend of Mr Reid, offered to guarantee Mr Reid’s attendance at the Court hearing on 22 November 2004 and thereafter.  Eventually, an order was made on 2 November 2004 directing that Mr Reid be released from custody on the oral undertakings given by Mr Reid and Mr Morris.  I released Mr Reid to enable him to assist in the preparation of his defence.

58                  Mr Reid was released on 2 November 2004.

59                  On this application for an adjournment Mr Reid, Ms Pearce and Mr Amey gave evidence.  I shall explain how that came about later.  The findings which follow are made on their evidence.

60                  There was no conflict on their evidence which required any findings on credibility.  I have made no findings on credit.

61                  Apparently, between 2 November 2004 and 12 November 2004 Mr Reid met with Mr Amey and he also spoke with Mr Amey on the telephone in relation to the substantive proceedings to commence on 22 November 2004.  Mr Reid made no contact with his solicitors during that time.

62                  On 12 November 2004 Mr Amey advised Mr Reid that he should contact his solicitors for the purpose of arranging for the interview of witnesses who Mr Reid had identified to Mr Amey as being relevant to the proceedings.

63                  During this period of time, so I have been advised, the Legal Services Commission authorised Ms Pearce of Fleurieu Law and Mr Amey to read the material which had been presented by ASIC, and upon which ASIC intended to rely, for the purpose of conducting Mr Reid’s defence.  Both Ms Pearce and Mr Amey carried out that reading.

64                  Mr Reid says that on Monday, 15 November he attempted to contact Ms Pearce but was advised by Ms Pearce’s employee that she was unavailable and he should ring back.  He did not ring back.  He contacted the Duty Officer of the Legal Services Commission at the Adelaide Magistrates Court.  Mr Reid was advised by the Duty Officer that no funding had been approved for the trial of this action.

65                  He made no attempt to telephone either Ms Pearce or Mr Amey, although he had Mr Amey’s mobile number which he had used before.  He had also attended at Mr Amey’s chambers.

66                  Instead Mr Reid telephoned Mr Stephen Ey, a solicitor, seeking an appointment with him.  Mr Reid saw Mr Ey on Tuesday, 16 November at about midday.  Mr Ey advised him that he could not act and referred him to Mr Mancini, a principal of George Mancini & Co.  Mr Reid saw Mr Mancini that afternoon.

67                  Sometime during the afternoon of 16 November, Ms Pearce received a facsimile from Mr Mancini advising that he was acting and seeking her file.

68                  George Mancini & Co sent a facsimile to my associate at 4.04pm on 16 November in the following terms:

‘Please note that Mr. Reid has asked this firm to act in respect of the Federal Court proceedings which we understand are presently listed for trial commencing on Monday, 22 November 2004.

We have only just been asked to act.  We request that the matter be called on for the purposes of an application to vacate the trial date.

Subject to the convenience of the Court and the prosecution, the defence request is for a listing on Thursday, 18 November 2004.

We have sent a fax to Ms. D. Shelton [sic] of ASIC.  Please advise.  Thank you.’

69                  At or about the same time, Mr Reid rang Ms Pearce’s office seeking Ms Pearce’s file in relation to his matter.  He told Ms Pearce’s employee that he was standing outside Mr Amey’s office and wanted the file urgently.  Ms Pearce was not in her office and her employee was unwilling to accede to Mr Reid’s request without first speaking to Ms Pearce.

70                  Sometime on Wednesday, 17 November 2004 Fleurieu Law’s file was handed to Mr Mancini.

71                  Mr Mancini then took steps to obtain the Legal Services Commission file which I think was obtained on 17 November.  When he obtained the file he also received a certificate for funding for the purpose of the trial on 22 November, although that was not a request which he had made of the Legal Services Commission.

72                  As requested by Mr Mancini, the matter was listed before me at 2.15pm on Thursday, 18 November 2004.  Mr Mancini advised me that his instructions were limited to apply for an adjournment.  He told me that if the matter were to proceed on 22 November 2004 he would not be available.  However, if the matter were to be adjourned he would accept instructions from Mr Reid generally in the matter and appear on the substantive proceedings.

73                  Mr Mancini advised me that his instructions were that the matter should be adjourned because the matter had not been prepared and that Mr Reid, through no fault of his own, was in the position of being unable to conduct his own defence.

74                  I was not satisfied that all steps had been taken to obtain funding or that the matter was unprepared.  I indicated that I wished to hear from the Legal Services Commission, Ms Pearce and Mr Amey.

75                  I suggested that I would sit the next day for that purpose.  Mr Mancini advised me that he could not attend on Friday.  In those circumstances, I listed the matter for hearing on Thursday evening at 6.00pm.

76                  When the matter was called on I made enquiries of Mr Mead, who represented the Legal Services Commission, Ms Pearce and Mr Amey in relation to the matters which had been raised with me.

77                  Mr Mead advised me that funding had been approved for the preparation of the case but that no funding had been approved in relation to the hearing itself until Mr Mancini wrote to the Commission on Tuesday, 16 November 2004.

78                  Ms Pearce told me that she had no contact from Mr Reid after his release.  No messages had been left for her.  She understood that Mr Reid was meeting with Mr Amey.  She had been in contact with Mr Amey in relation to the preparation of the case.  She had done a good deal of the required reading.

79                  Mr Amey advised me that he had met with and spoken to Mr Reid over the telephone between 2 November and 12 November.  He had read the information provided by ASIC.  He had advised Ms Pearce of the persons who ought to be interviewed in relation to the defence of the matter.  He had advised Mr Reid to contact Ms Pearce on Friday, 12 November.

80                  Mr Amey told me that as at Tuesday, 16 November he would have been in a position to conduct the defence of the matter if the requisite work had been carried out between Tuesday, 16 November and Monday, 22 November.  He would have been able to carry out that work.

81                  Mr Mancini, who appeared again on behalf of Mr Reid, sought to examine Ms Pearce and Mr Amey in relation to the account they had given the Court.  Both were sworn and examined by Mr Mancini.

82                  I am satisfied that both Ms Pearce and Mr Amey were accurate in their account of events.  I am also satisfied that if their instructions had not been terminated both, and in particular Mr Amey, would have been in a position to conduct the trial of the matter commencing on 22 November 2004.

83                  It was not clear from Mr Pearce’s evidence why it was that funding had not been applied for.

84                  I rather suspect that the instructions to Ms Pearce were that someone else would fund the proceedings apart from the Legal Services Commission.  There was vague talk about retaining silk.  However, Ms Pearce was constrained, of course, by reason of legal professional privilege, from advising me of her client’s instructions.  Mr Reid did not waive legal professional privilege.  That is no criticism of Mr Reid.  In the circumstances, where I would be the trial judge and where his opponent was present, he could not be blamed for not waiving legal professional privilege.

85                  However, in the end result, it means that I am not persuaded by Mr Reid that any fault lies with Ms Pearce for failing to obtain funding from the Legal Services Commission.

86                  It can be seen from the history of the matter that Mr Reid has not complied with any directions I have given since 9 December 2003.  He has changed his solicitors a number of times over that period of time.

87                  I find that it was unreasonable for Mr Reid to withdraw his retainer from Ms Pearce and Mr Amey, and that if he had done as he was instructed by Mr Amey and made contact with Ms Pearce the matter would have been prepared and his counsel would have been in a position to conduct his defence.

88                  There is no prospect Mr Reid could meet any order for costs.  He is clearly indigent.

89                  Mr Mancini could not advise me when he would be in a position to conduct Mr Reid’s defence.  The best he could tell me, and this is no criticism of him, is that I should appoint another directions hearing and give directions for the filing of affidavits.  Of course, I have done that on a number of occasions and those directions have not been met.

90                  ASIC is a statutory corporation which has significant resources provided by the Commonwealth Government.  However, that does not mean that it is not also entitled to justice.  It has been ready to proceed on two previous occasions and, through no fault of its own, the matter was adjourned.

91                  It has a number of witnesses which it has organised for each of those previous hearings and for the hearing on 22 November 2004.  Those witnesses are not professionals but are persons who are to give evidence about negotiations and transactions which they had with Mr Reid.  They have been inconvenienced twice before and, if I had adjourned the matter, would have been inconvenienced once more.

92                  It is a matter of discretion whether or not an adjournment should be granted.  Usually an adjournment would be granted where the opposing party would suffer no prejudice.  Also, usually an adjournment would be granted if the party seeking the adjournment would otherwise suffer, or be likely to suffer, any injustice.

93                  I have pointed to the prejudice which ASIC might suffer by the adjournment.  Its prejudice is the embarrassment that its witnesses would be put to by yet another adjournment.  It would also incur costs which it could never recover.  That prejudice is not overwhelming.  I am mindful of the prejudice that Mr Reid would suffer if an adjournment were not granted.  However, in the nearly 12 months that the matter has been before me, Mr Reid has not complied with any direction which I have made.  I am not criticising him for that.  It is a matter for him whether he adduces any affidavit evidence in opposition to ASIC’s claim.  Indeed, I would probably not refuse an application by him to call oral evidence without first providing affidavit evidence.

94                  However, his failure to comply with any direction or ever giving any reason for that failure indicates to me that no matter how many adjournments he is given the matter will never be prepared any better than it is now.

95                  On each of the occasions that the matter has been listed he has sought at the last moment to have the matter adjourned without ever really explaining why it is that he has not been ready.

96                  I have reached the conclusion that if I were to adjourn the matter something of the same kind would happen on the next occasion and he would seek a further adjournment

97                  There comes a time when a matter must proceed even though one of the parties will be disadvantaged.  The respondent’s disadvantage in this case has been brought about by his own actions.

98                  In all the circumstances, I thought it was inappropriate to grant an adjournment and the application was refused.

Associate:

Dated:              22 November 2004