FEDERAL COURT OF AUSTRALIA

Napiat Pty Ltd v Salfinger [2011] FCA 1088

THE COURT ORDERS THAT:

1.    The hearing fixed for 29 September 2011 be vacated.

2.    The respondent pay the applicant’s costs both of the adjournment application and thrown away by reason of the vacation of the hearing date.

3.    In consultation with the respondent, the applicant provide to the Associate to Foster J the dates to the end of 2011 on which both parties are available for the matter to be heard.

4.    The matter be listed for directions at 9:30am on Tuesday 4 October 2011 before Foster J

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On Thursday 15 September 2011, at the instigation of the respondent, Mr Salfinger, I adjourned the hearing of the trial of this matter which had been fixed for 29 September 2011 before Foster J who is presently absent on leave. The basis for the application was that 29 September 2011 is Rosh Hashanah which is the Jewish New Year and that Mr Salfinger is an orthodox practitioner of the Jewish faith. These are my reasons for acceding to that application.

2    Evidence was led on affidavit from Rabbi Chaim Groner that Halachic law requires strict observance on Rosh Hashanah of restrictions which prohibit observant persons from engaging in any kind of work. Such a restriction might be thought insufficient to prevent Mr Salfinger from being represented on Rosh Hashanah by a lawyer but, as Rabbi Groner explained, in the context of the Halachic law, the concept of work extended to the notion of performing work through others which, in this case, would include Mr Salfinger’s attorneys.

3    There was evidence before me that Mr Salfinger was an orthodox adherent of the Jewish faith. His solicitor, Mr Barry Moshel, who himself is an orthodox adherent of the Jewish faith, gave evidence that he not only personally knew Mr Salfinger but that he was an Orthodox Jew; Rabbi Groner gave similar evidence. The Rabbi was not cross-examined but Mr Moshel was. It was not suggested to him that Mr Salfinger was not orthodox and, in that circumstance, I accept that Mr Salfinger is an orthodox adherent of the Jewish faith.

4    Mr Cheshire, who appeared for Napiat Pty Ltd in resisting the adjournment, submitted that there might well be shades of orthodoxy and that it did not follow that Mr Salfinger would be unable to attend the hearing or engage attorneys to attend for him. This submission was to be seen as strengthened by the fact that Mr Salfinger had not himself graced the witness box or sworn any affidavit on the application, leaving Mr Moshel and Rabbi Groner to discharge that evidentiary burden.

5    I am disinclined to accept either of these arguments. As to the lack of direct evidence from Mr Salfinger I would say this: Mr Moshel’s evidence under cross-examination was that he became aware that the trial clashed with Rosh Hashanah on or about 2 September 2011; that he wrote to the applicant’s solicitors on 5 September 2011 seeking their consent to an adjournment; and that, following their refusal to embrace that course, he applied on Friday 9 September 2011 for the adjournment. That application came before me, as duty judge, and orders were made that the evidence on the application be filed by Monday 12 September 2011 with the application to be returnable at 10.15am on Thursday 15 September 2011. Mr Moshel’s evidence was that given the tightness of that evidentiary timetable and Mr Salfinger’s absence somewhere in Canada it was not possible to obtain his affidavit by the Monday. I accept this evidence.

6    As to the possibility that there might be shades of orthodoxy whose breadth might permit some adherents to attend Court on Rosh Hashanah, I do not accept that this is consistent with Rabbi Groner’s evidence. He said that observant adherents were required not to work and that Mr Salfinger was observant. ‘Observant’ in this context means obedient. The effect of the Rabbi’s evidence is that Mr Salfinger is a person who observes Rosh Hashanah.

7    The scepticism of Mr Cheshire’s client is not difficult to understand. The cross-examination of Mr Moshel revealed that Mr Salfinger has an extensive history of litigation one of whose principal features is consistent adjournment applications, usually on bases which whilst featuring commendable elements of creativity have not generally commended themselves to the presiding judge on the day. That material does provide a basis for considerable scepticism about Mr Salfinger’s bona fides in seeking this adjournment. Further, there were some aspects of Mr Moshel’s evidence about which Mr Cheshire was critical. Why, for example, had Rosh Hashanah not been clearly marked in Mr Moshel’s diary so that exactly this kind of problem did not arise? The answer, according to Mr Moshel, was that it had been marked in his electronic diary but that he had switched over electronic diaries, from Outlook to Google, and in that process the entry for Rosh Hashanah had been lost. There was another problem: it appeared that the matter had been fixed for hearing on 8 June 2011 by Foster J and it was accepted by Mr Hand of counsel, who appeared for Mr Salfinger, that that day corresponded with Shavuot, another important holiday upon which it would not be possible for observant adherents to work. But Mr Moshel had an answer to this: he had not attended work that day himself and was unaware that the directions hearing had been scheduled for it. He had retained counsel in Sydney – Mr Moshel works in Melbourne – and the problem of Shavuot had simply gone ‘under the radar’.

8    The difficulty with this evidence is that, however curious one regards the adjournments Mr Salfinger has sought in the past and however unlucky Mr Moshel’s experiences at the hands of his electronic diary appear to have been, I am confronted, as Mr Hand pointed out, with uncontradicted evidence which suggests that Mr Salfinger is an orthodox adherent of the Jewish faith.

9    The question then becomes one of balancing the legitimate entitlements of a person to practise his or her religion against the more general needs of the legal system. There was no material which suggested that the proceeding was exceptionally urgent or that a short adjournment would cause prejudice. There was an explanation for the delay which, notwithstanding some hesitation, I am prepared to accept. Further, the application was made very shortly after the time at which the problem became known and, in any event, well before the trial.

10    In those circumstances, I do not see that this is an adjournment application which should be refused. So far as I have been able to see there is little direct treatment of Rosh Hashanah and adjournment applications in this country (although see Ehrenfeld v Choy [2006] NSWSC 1092 where the issue came into view). In the United States it has been accepted that in the case of orthodox adherents, Rosh Hashanah is a proper basis for an adjournment and, indeed, that a refusal of an adjournment application in such circumstances constitutes what, in this country, is known as a House v The King (1936) 55 CLR 499 error: Neustadter v Holy Cross Hospital of Silver Spring, Inc 13 A.3d 1227 (Md, 2011). In that case the plaintiff had sought an adjournment of a medical negligence trial on the basis that it conflicted with Rosh Hashanah and he was an Orthodox Jew. In concluding that the trial judge’s refusal of the original adjournment application should be set aside notwithstanding its discretionary nature and the peculiar advantages available to a docket judge the plurality said that (at 1235) ‘because the articulated rationales, discussed infra, failed to reasonably accommodate Petitioner’s right to engage in religious conduct and to meaningfully participate in his trial. In this case, the absence of the plaintiff and his counsel from trial could not have been and indeed was not meaningfully mitigated. Moreover, Petitioner’s notice to the court and opposing counsel of the scheduling conflict was not so untimely as to preclude accommodation or indicate an utter lack of diligence.’

11    In this case, there is an absence – on the facts as I have found them – of significant disentitling conduct. I would not exclude the possibility that a Rosh Hashanah adjournment application by an observant adherent might be refused; but given the extreme consequences that would result, in terms of procedural fairness, the discretionary matters would need to be of a corresponding order. In this case, that threshold is not approached.

12    There is nevertheless conduct here which should be sanctioned. It is the conduct in permitting the matter ever to be fixed on Rosh Hashanah in the first place. Responsibility for that lies in Mr Salfinger’s camp. But granted that be so, I do not think that it warrants the extreme sanction of denying Mr Salfinger the right to participate in his own trial. It does, however, provide a proper basis for ordering him to pay the costs of this adjournment application and, of course, of the costs thrown away by reason of the adjournment. I so order.

Associate:

Dated:    22 September 2011