FEDERAL COURT OF AUSTRALIA

Harper v Reg-Air Pty Limited [2009] FCA 1226

GEOFFREY ALLEN HARPER v REG-AIR PTY LIMITED

NSD 534 of 2009

DOWNES J

23 OCTOBER 2009

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         Adjournment application refused.

2.         Costs reserved.

Noted:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court’s website.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BACKGROUND

1                     Application is made to me for the adjournment of an appeal in this matter.  The appeal is listed for hearing on 19 November next.  The application is made by the applicant on the ground that he will wish to seek leave to adduce further evidence in the appeal.  That evidence will relate to some criminal proceedings that have been commenced, but not concluded.  It follows – and this is part of the application – that the actual evidence to be adduced if the application is successful is not yet known and will not be known until after the criminal proceedings are disposed of. No application has yet been made to adduce the further evidence because the time for such an application has not yet expired and will not expire until 21 days before the date for hearing of the appeal. 

2                     The substantive reason for the application today for an adjournment of the appeal is closely associated with the merits of the appeal itself.  The criminal proceedings may produce evidence which touch upon the credit of a substantial witness in the case.  In all these circumstances, it seems to me that it is not appropriate for me, as only one of the judges comprising the appellate bench, to now accede to an application for adjournment.  This view seems to me to be strengthened by the fact that no application has yet been made for leave to adduce further evidence in the appeal.

3                     I am conscious of the fact that Mr Levingston, who appears for the appellant, has relied upon the fact that time has not expired, but in my experience, it is unusual that an application for an adjournment based on an application to adduce further evidence is made before the application to adduce further evidence has been filed.  It may be true to say that the time for an application to adduce further evidence has not yet expired, but there is nothing which prevents an appellant from filing an application before the last day permitted for it. 

4                     The circumstances in which applications to adduce further evidence on appeal are admitted are reasonably limited.  Mr Levingston, in his submissions to me this morning, has referred to some of them.  To my mind, it is by no means clear that an application to adduce further evidence in this matter will be successful, although, of course, whether it is successful or not will depend upon the material and submissions advanced when the application is made.  Nevertheless, it does not seem to me at present that the application is very clearly likely to succeed.  It may well succeed, but I do not think the prospects of success can be put so high as to make it appropriate for me, as a single judge being part of the bench which will hear the appeal, to make the decision.

5                     It seems to me that the best course is for the appeal to be listed for hearing on the day on which it is presently listed.  The first matter to be dealt with on that day will be an application for leave to adduce further evidence, assuming that one has been made in the meantime, and depending upon the result of that application, a further application for adjournment of the matter may be made.  I have foreshadowed this possibility with counsel for the respondent, including the possibility that that may mean that the appeal is adjourned without hearing, although the parties have been put to the expense of preparing for a hearing. He says he understands this, but still opposes the application. 

6                     It seems to me, therefore, that the appropriate course is for me, at this stage, to refuse the application for an adjournment, but to note that the application can be made again, if appropriate, on the day of the hearing.  I make it very clear, however, that if an application for adjournment is made and that application is refused, that the matter must proceed for a full hearing on that day.  I make the same observations so far as the application to adduce further evidence is concerned.  In other words, both parties should be prepared to deal with the application to adduce further evidence on the first day of the hearing and, for example, if it were successful, to deal with the situation as it impacted on the merits of the appeal itself.

7                     In making those remarks, I nevertheless note that because the material is not available at present and certainly not the material that would be the product of the hearing of these criminals proceedings, those circumstances may affect the attitude to the court as to whether the matter should go on straightaway, but all other things being equal, I simply wish to make it clear that whatever happens in connection with these interlocutory applications on the hearing date, neither party will be permitted to make an application for an adjournment based on what has fallen out in the two interlocutory applications.

Associate:

Dated: 23 October 2009