FEDERAL COURT OF AUSTRALIA

Benic v State of Victoria [2011] FCA 1263

THE COURT ORDERS THAT:

1.    The hearing fixed for 17 October 2011 be vacated.

2.    The directions hearing is adjourned to 5 December 2011 at 10.15 am.

3.    There be no order as to costs of the application for adjournment.

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

REASONS FOR JUDGMENT

1        The resumption of the trial in this case was fixed to begin next Monday, 17 October 2011. The applicant, through his mother, Mrs Vida Benic, has applied for an adjournment of the trial. The trial is part-heard, there having already been nine sitting days in March this year. Mr Rapke QC appeared as amicus curiae in order to assist in bringing to the attention of the Court the circumstances in which the application for an adjournment is made. No objection was made by the respondent to that course, and the Court is grateful for the assistance which Mr Rapke QC has rendered.

2        The reason for the application is principally that the applicant no longer has legal representation in the case. Mrs Benic terminated the services of her lawyers after the conclusion of the first part of the hearing. Some time after that, the firm of Slater & Gordon reviewed the material with a view perhaps to act on behalf of the applicant. On 17 August 2011, Slater & Gordon indicated to Mrs Benic that they would not take the case on behalf of the applicant.

3        Mrs Benic subsequently approached various law firms and barristers, both in Melbourne and interstate, in order to secure pro bono legal representation. She also approached the Law Institute of Victoria and the Public Interest Law Clearing House (PILCH) for assistance. Further, Mrs Benic made two unsuccessful applications to Victoria Legal Aid, the last of which was refused last week. Mrs Benic has therefore recently concluded, after the experience of canvassing various law firms, barristers and organisations, that the applicant will not be able to obtain free legal representation, but will have to pay for it. Mrs Benic now accepts that situation, and is intent upon making financial arrangements to allow the applicant to be legally represented. She seeks an adjournment for a month in order to secure that representation. Then the case would return to the Court for directions, hopefully with a lawyer retained on behalf of the applicant and an estimate of when the trial could resume.

4        Mrs Benic is unwilling to conduct the case on her own without legal representation. In support of that position, she relies upon a report of a throat surgeon, Mr John Kennedy, who offers the opinion that a recent incident when Mrs Benic lost her voice for a week was possibly the result of stress.

5        In response to questions from the Court, Mr Rapke explained that the applicant was now attending a prevocational course in panel beating on four days a week at the Gordon Institute in Geelong, and although apparently irregularly, attending on the other day at Maribyrnong Secondary College, the subject of these proceedings. The panel beating course is 12 weeks long, and the applicant has completed six weeks. The Court was told that he is happy there and progressing well. He is to commence Year 11 next year, and therefore has two years of school remaining.

6        The respondent opposes the adjournment on a number of grounds. Firstly, Ms Doyle SC, who appeared with Mr Felman on behalf of the respondent, argued that there was prejudice to the respondent in that preparation for trial has been undertaken so that the respondent would be ready for a hearing commencing on 17 October 2011. The costs of that preparation are said to be wasted if the trial does not proceed on that day.

7        The respondent then argued that the applicant has not proceeded in the case with appropriate diligence. This is a reference to the more distant history of the case, rather than to the conduct of Mrs Benic in the last few months. Ms Doyle pointed to two prior occasions upon which the date for the hearing was postponed at the instance of the applicant. On the first occasion, an available trial date was not taken up because the applicant’s then-solicitors, Access Law, claimed that it had too many cases similar in nature to the present pending at that time, and could not therefore give proper attention to this case. In those circumstances, the respondent consented to the adjournment. On the next occasion, the respondent opposed the adjournment. The adjournment was, however, granted. The basis then was that although the applicant’s then leading counsel was available at a particular time, his junior counsel and the law clerk assisting in the case, Ms Phillips, were not available. Against this background, it is said to be unreasonable and oppressive for the matter to be adjourned yet again.

8        Next, Ms Doyle argued that there was prejudice to the witnesses to be called by the respondent, because their professional reputation and conduct was called into question by the applicant, and it is uncomfortable, at the very least, for them if those issues remain unresolved. Further, the primary witness for the respondent, Ms Gardiner, has, since the case was last before the Court, resigned from the service of the respondent. She has been troubled twice in this matter with the prospect of attending Court in difficult circumstances. She is employed in Malaysia as a teacher. Not only is there the difficulty of travel to Australia for the hearing, but there is the necessity for her employer to make arrangements to replace her for the period of her absence. This led Ms Doyle to speculate that the respondent may not be able to rely upon Ms Gardiner’s cooperation on yet another occasion.

9        The matters raised by the respondent are matters of substance. The trial is part-heard. There is a need generally for matters in the Court to be dealt with speedily and efficiently. However, the circumstances in this case bring into collision parties on each side who, in the main, have acted conscientiously and reasonably. It was accepted by the respondent, correctly, that Mrs Benic personally bears little blame for the circumstances which have arisen since the last hearing. She has recognised that the applicant requires legal representation. She has sought to obtain that legal representation free of charge. From that I assume that her own financial resources do not make it easy for her to bear the cost of a trial of this magnitude and potential length. Those diligent steps having failed, Mrs Benic recognised that she would need to pay for legal advice, and is in the process of making arrangements to do so. I have seen Mrs Benic in the witness box giving evidence on the substance of the case, and nothing which I saw would contradict the conclusion, which the respondent accepted, that she was doing her very best in the interests of her son to progress the case as best she could under difficult circumstances. It would be unduly stressful and unreasonable for her to be required to continue the case on her own. The respondent, on the other hand, has taken the view that the Court made orders that the trial was to proceed on 17 October 2011, and it was the obligation of the respondent therefore to prepare the case with those directions in mind.

10        The matter was made a little more difficult for the respondent because I have been absent from the Court on leave for some time, and the monitoring of the process of a possible adjournment has been at a distance and on incomplete information. The result is that, as the Court would expect, the respondent has diligently pursued the preparation of the case, including pressing Mrs Benic to finalise her pleadings in conformity with directions and, quite fairly and reasonably, seeking to put before Mrs Benic a plan for the trial, including the program for calling of witnesses and such like.

11        At the same time, one can accept that to Mrs Benic, this diligent preparation only demonstrated to her the importance of having legal representation equal to the quality of the legal representation of the respondent. Consequently, both parties have acted reasonably, but circumstances have forced both parties and the Court into the situation in which it would be unjust to require the applicant to proceed without legal representation on 17 October 2011.

12        The respondent submitted that if an adjournment was to be permitted, then it should be on two conditions. First, that the date of the trial take into account the availability of the respondent’s legal team. Indeed, it was contended that such consideration should be, in effect, an absolute condition of the fixing of the trial date. Second, that the costs thrown away by the adjournment should be borne by the applicant.

13        In relation to the fixing of an adjourned date for the trial, the respondent should be entitled to a date on which its legal team is available. Rather than fixing that date now, it is preferable for the parties to return to the Court in approximately one month so that the Court can be advised of the progress of Mrs Benic’s search for legal representation and some more definition be brought to the fixing of a date for trial.

14        At present the position is that any lawyers to be engaged by Mrs Benic would probably not be in a position to represent her before the end of February or the beginning of March next year. March and April are dates unavailable to the lawyers for the respondent, and May is a time when the Court sits on appeals, and my availability is therefore uncertain. It is certain that I will not be available for all of May. It is also likely that I will be available for some of May, but that will probably not be known until February. Consequently, the first clear available dates seem to be in June. Ms Doyle indicated that not all of June may be preferable for all of the members of the respondent’s legal team. The precise timing of the adjourned trial should be addressed at the directions hearing in approximately one month.

15        Finally, the question of costs must be addressed. The applicant has sought an indulgence, and is to be granted that indulgence. The respondent seeks an order that the applicant pay the costs thrown away, being the costs of the preparation for the hearing which should have started on 17 October 2011.

16        Not all of the costs of that preparation will be thrown away. To the extent that there are wasted costs, the applicant should not be ordered to pay them. The reason is that, as events unfolded in the period in which the respondent undertook preparation of the case from early September, it was open to the respondent to assess the strength of the claim of the applicant to an adjournment and come to the view that it would be unjust for the applicant to be forced to proceed without legal representation. Although the action of the respondent in proceeding to prepare the case was readily understandable, the proper course for the respondent in the circumstances was to accede to the request for an adjournment.

17        The directions hearing will be adjourned to 5 December 2011. There will be no order as to the costs of the adjournment or the respondent’s costs thrown away as a result of the adjournment.

Associate:

Dated:    4 November 2011