FEDERAL COURT OF AUSTRALIA

Mawkes v State of Victoria (Department of Human Services) [2005] FCA 1793

JACKIE MAWKES  -v-  STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES)

VID 328 of 2004

RYAN J

MELBOURNE

30 NOVEMBER 2005

THE COURT ORDERS THAT:

1.         The application for adjournment by motion on notice filed 29^th November 2005 be refused.

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

REASONS FOR JUDGMENT

1                     In this matter, which has been listed for trial to commence today, an application has been made by the applicant, who appears in person, for the matter to be adjourned to enable her to make application for a referral for pro bono assistance under O 80 of the Rules of this Court.

2                     The application for an adjournment is opposed on several grounds, but it is sufficient to indicate that, on balance, I have concluded that the most appropriate exercise of the Court's discretion is to refuse the application for an adjournment.  Of the principal considerations which have led me to exercise the Court's discretion in that way, the first is the absence of any facility for the Court in the jurisdiction which it is exercising to make an order here and now for costs thrown away as a result of the adjournment.  The respondent cannot therefore be assured that it would be compensated for those costs if the matter were adjourned today.  Any such compensation would depend upon a conclusion by the Court, not only that an order for costs was an appropriate condition of the adjournment, but that the whole proceedings had been instituted vexatiously or oppressively.  I note, parenthetically that, as may be expected in the light of her application for a referral under O 80, Ms Mawkes has made no offer to pay the respondent's costs of the adjournment if it were granted.

3                     Order 80 cannot readily be accommodated to last minute referrals on the eve of trial.  Ideally, an application for a pro bono referral should be made at the outset of the litigation, or as early as possible after it has been instituted.  The scheme contemplates that assigned counsel and solicitors will exercise a degree of control and selection over how the case is formulated and the issues which can responsibly be litigated.  That element of control will be lost if a litigant in person is permitted to pursue the case through all of its interlocutory stages and if, as has occurred in this case, considerable indulgence is extended because of the absence of legal representation.

4                     The affidavit on which the respondent relies in opposing the application for an adjournment, that of Brett Francis Murphy, sworn 29 November 2005, refers in paragraph 7 to the fact that a number of employees of the respondent, whose evidence may be material to the proceeding, have left the organisation.  Efforts have been made to ensure the availability of witnesses for the hearing.  However, further delays may prejudice the respondent's ability to do so at a later time.

5                     Another consideration which has influenced me to exercise the discretion in the way that I have just indicated is that an urgent matter which has arisen will preclude me from devoting the whole, or probably a substantial part of tomorrow to this case, so that, if the matter does not conclude today and is unlikely to conclude in that part of tomorrow which can be devoted to it, an opportunity will arise for the applicant to review the progress of the litigation and possibly to obtain further legal advice or representation.  In those circumstances, the application for adjournment is refused and the matter will proceed forthwith.

Associate:

Dated:              30 November 2005