FEDERAL COURT OF AUSTRALIA

Spencer v Commonwealth of Australia [2014] FCA 1117

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application, filed with the Court on 10 October 2014, is dismissed.

2.    On or before 24 October 2014, the applicant file and serve a notice of address for service.

3.    The applicant have leave to have a person sitting at the bar table with him to assist him during any pre-trial hearings and during the trial.

4.    Paragraph 8 of the orders of Gleeson J dated 22 May 2014 be vacated.

5.    Subject to compliance with the directions made today in respect of an agreed tender bundle, on or before 12 November 2014, the first respondent prepare, file and serve electronic copies of a chronological, paginated Court Book.

6.    The applicant must be served with one hard copy of the Court Book.

7.    Paragraph 5 of the orders of Gleeson J dated 22 May 2014 be varied, so that the applicant is to file and serve his evidence in reply on or before 13 November 2014. This evidence is to be filed and served in the form of a supplementary Court Book.

8.    Liberty is reserved to the applicant to apply for leave to adduce any reply evidence he has not been able to file by 13 November 2014 in oral form from the relevant witness during the trial.

9.    Paragraph 9 of the orders of Gleeson J dated 22 May 2014 be varied, so that the applicant is to file and serve his written outline of submissions on or before 13 November 2014.

10.    Paragraph 10 of the orders of Gleeson J dated 22 May 2014 be varied, so that the respondents are to file and serve their written outlines of submissions on or before 20 November 2014.

11.    Any requests for leave to issue subpoenas for witnesses at trial are to be filed by 10 November 2014.

12.    The applicant is prohibited from printing, copying or distributing the trial transcript made available to him in accordance with paragraph 8 of the Court’s directions made on 17 October 2014.

13.    The applicant is to return the trial transcript made available to him in accordance with the Court’s directions after the conclusion of final submissions in this proceeding, at a date to be fixed by the Court.

14.     The respondents’ costs of the interlocutory application are reserved.

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

REASONS FOR JUDGMENT

THE APPLICATION

1        By an application dated 10 October 2014, the applicant, Mr Peter Spencer, applied for orders vacating the trial of this proceeding, which is currently listed to commence on 24 November 2014, with an estimate of three weeks. He seeks an order that the matter be relisted for a convenient date in 2015, and that the timetable for trial preparation be varied to take account of the new trial date. The terms of his application are as follows:

1.    Orders to vacate the hearing date Monday the 24th of November until 12th of December.

2.    Orders to nominate a new date for the hearing in the new year – 2015.

3.    In the event the hearing date is vacated I request the court to vacate all the orders relating to the existing time table of evidence and other procedural matters.

4.    Order a new timetable acceptable to all parties leading to that hearing.

5.    Such Further or other orders as the Court seems fit.

A BRIEF HISTORY OF THIS MATTER

2        This proceeding has a long history. It was first issued on 12 June 2007. On 26 July 2007 the first respondent (then the only respondent), the Commonwealth, filed a notice of motion seeking summary dismissal of the proceeding pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), which was heard by Emmett J in May and June 2008. On 26 August 2008, his Honour gave reasons why both Mr Spencer’s interlocutory application and the proceeding should be dismissed: see Spencer v Commonwealth [2008] FCA 1256. Orders were made on 28 August 2008 dismissing the proceeding: Spencer v Commonwealth (No 2) [2008] FCA 1378.

3        Mr Spencer was granted leave to appeal the decision of Emmett J on 9 October 2008. The appeal was heard by a Full Court in February 2009 and, on 24 March 2009, the Full Court dismissed Mr Spencer’s appeal: Spencer v Commonwealth (2009) 174 FCR 398; [2009] FCAFC 38. Mr Spencer sought special leave to appeal to the High Court. His application was adjourned pending delivery of the High Court’s judgment in Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242; [2010] HCA 3: see Spencer v Commonwealth [2009] HCATrans 126. On 12 March 2010 Mr Spencer’s application for special leave was referred to an enlarged full court for argument as on appeal: Spencer v Commonwealth [2010] HCATrans 55. On 1 September 2010 the High Court granted special leave to appeal, allowed Mr Spencer’s appeal, set aside the orders of the Full Court and Emmett J and dismissed the Commonwealth’s application for summary dismissal: Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28. On 12 November 2010 the State of New South Wales was added as a respondent.

4        Since that date, the proceeding has been subject of a number of interlocutory disputes about discovery, including claims by the Commonwealth of public interest immunity: see, eg, Spencer v Commonwealth (No 3) [2012] FCA 637; Spencer v Commonwealth (No 4) [2012] FCA 1142; Spencer v Commonwealth (2012) 206 FCR 309; [2012] FCAFC 169.

THE POINT THE PROCEEDINGS HAVE REACHED

5        Following the High Court decision, the proceeding returned to the docket of Emmett J. The proceeding was re-docketed to Cowdroy J in February 2013. Following the retirement of Cowdroy J, the proceeding was transferred to the docket of Gleeson J on 17 April 2014.

6        On 22 May 2014 her Honour made orders for preparation for trial including filing of evidence and submissions, and, without any objection from the parties, provisionally listed the matter for hearing commencing on 24 November 2014 with an estimate of three weeks. Further directions hearings were held before Gleeson J in June and August 2014, where orders were made relating to the filing of a draft court book index. The proceeding was docketed to me on 4 September 2014 and, on 11 September 2014, a directions hearing was held where orders were made varying some of the timetable for preparation for trial. The parties have complied with the preparation timetable with the exception of the applicant’s reply evidence, which was due to be filed on 10 October 2014. On 2 October 2014, the applicant’s then legal representative filed and served a notice of intention of ceasing to act pursuant to r 4.05 of the Federal Court Rules 2011 (Cth) (Federal Court Rules). No notice of ceasing to act has been filed. Mr Spencer maintains he is currently representing himself, although there has been no new notice of address for service filed and the state of his legal representation is somewhat unclear.

MR SPENCER’S EVIDENCE IN SUPPORT HIS ADJOURNMENT APPLICATION

7        In support of his application, Mr Spencer relies on an affidavit, sworn by him on 10 October 2014. In that affidavit he sets out the reasons for seeking an adjournment as follows:

(a)    This case has now been running nearly 10 years.

(b)    All in my camp in my team of assistants are exhausted and on the edge – me especially with only a few weeks of family contact in 7 years and I have 6 children.

(c)    Funding was from the Australian Farmers Fighting Fund (AFFF) ending December 2013

(d)    Efforts to extend funding from the AFFF were not successful.

(e)    The AFFF have said they may step back in again.

(f)    The Legal team only run small practices and this case is proportionately very demanding on their facilities compared with the impact of the Respondent’s resources.

(g)    The increase in outgoing cash fund requirements heading into and with the trial, were also beyond their capacity and an unreasonable demand.

(h)    All other preliminary attempts to obtain funding have so far failed.

(i)    These attempts have not included a full approach by me to those traditionally involved in the funding of this kind of matter - farming families.

(j)    Without my demands dominating the schedules of those on my legal team who were involved in these proceedings are now relieved and free to service regular non pro-bono clients.

(k)    The pressure of these events for all those in my team was unreasonable and risking a complete disintegration of the relationship.

Because of the ever increasing need to try and survive financially and professionally – legally and still address the proceedings entirely appropriately more and more short cuts were being taken to the point whereby I believed the case could be compromised if steps were not taken to re-set the agenda.

8        Mr Spencer’s affidavit also refers to personal difficulties he has been experiencing with his living arrangements. He raises the changes to both the Commonwealth’s legal representative and the docket judges as reasons for him seeking an adjournment, which he says has caused “numerous unreasonable difficulties resulting in the substantial loss of knowledge and continuity in the case”. He states that he does not have the funds to purchase transcripts of the proceeding, which he says “makes progress very difficult and most unfair”. The benefits to him of an adjournment of the trial, he states, would be as follows:

ln the event funds cannot be obtained and an appropriate legal team is not forthcoming then my approach as a self representing litigant will require consideration so as to allow me to provide a team that will not delay the process of the court and assist in a speedy and an entirely appropriate outcome.

…there are persons on my team who could assist greatly in preparation and in the day to day case assistance during trial so as to assist in a range of requirements, from the provision of an appropriate photocopying facility to secretarial and computer services to advance law students assisting with forms and interpreting “in court” procedure. This would also include transport and research.

The mobilisation of such a team requires time and planning with all the farming and land owner families involved.

Hence my decision and now the resulting request for new date for the hearing with me on the team.

9        Mr Spencer also relies on a medical certificate from a general practitioner, dated 13 October 2014 and provided to the Court on 15 October 2014, which states that he is “receiving medical treatment for multiple comorbidities and recently due to increased stress level his blood pressure is difficult to control which increases his adverse cardiovascular risk” and is “unfit to continue his usual occupation”.

10        During the hearing Mr Spencer made a number of statements from the bar table, which in the circumstances I indicated I would take as additions to his affidavit, subject to the respondents’ views. Neither respondent objected to such a course.

11        Mr Spencer said that, whatever his doctor might think, his health would not preclude him running a trial and he would be able to “match it”, or words to that effect, with the respondents’ counsel. He confirmed that he had terminated the retainer of his solicitors and counsel. He explained the reason for this as stemming not only from the fact there were no longer funds to pay them, but from differences of opinion about strategic issues in the conduct of the proceeding.

12        Mr Spencer spent some time describing to the Court what he obviously considered to have been a much delayed and frustrating process of obtaining discovery from the respondents. It is clear he considers there are further relevant documents to which he has not been granted access. He was clear that, although voluminous, the documents which would need to be tendered in evidence, from his perspective, are not as large as the current bundle of documents filed on his behalf. He expressed, most responsibly I must observe, a willingness to try to confine the number of documents which would be adduced. Figures of approximately 200 documents were mentioned by him. He indicated that if he ran the trial himself, his familiarity with the matter and with the documents would probably mean he would need to tender fewer documents.

13        In response to an indication from me that the earliest alternative date the parties would be able to be given if the matter stayed in my docket would be September 2015, Mr Spencer stated he was “not bothered” by that date, because the proceedings had been on foot for so long. Later, however, he also indicated that he wished to have the trial over with.

MR SPENCER’S PROPOSED TIMETABLE FOR THE PROCEEDING IF AN ADJOURNMENT IS GRANTED

14        Mr Spencer has provided to the Court a draft revised timetable for consideration, which provides for filing of the applicant’s evidence in reply in late January 2015, and the filing of the Court Book and submissions in March 2015. It anticipates a trial date of, at the earliest, April 2015.

15        In a communication with the respondents, which he has copied to the Court, Mr Spencer also seeks adjustments to the way parties (and, presumably, the Court) is to communicate with him. Those adjustments include a preference for requests for him to respond to be sent on Friday, so that he might have the weekend to prepare any reply, and for communications to be made to him by telephone in circumstances where the matter is urgent. Mr Spencer cites the difficulties with his remote location and his lack of access to technology as the reasons for requesting these adjustments.

16        It may be noted that these requests provide a slim basis for confidence that Mr Spencer is anticipating being able to retain legal representatives in the future. The operating assumption of many of his statements is that he will continue to be self-represented. That, on the evidence, is the more realistic assumption.

THE RESPONDENTS’ ATTITUDE TO THE ADJOURNMENT APPLICATION

17        The Commonwealth neither consents to, nor opposes, Mr Spencer’s application to adjourn the trial and vary the proposed timetable. However, the Commonwealth does seek the following orders by way of costs:

(a)    in the event that the Court makes orders to vacate the hearing listed to commence on 24 November 2014, an order that the applicant pay the costs thrown away or occasioned by the vacating of the hearing listed to commence on 24 November 2014, and

(b)    an order that the applicant pay the costs of the interlocutory application filed on 10 October 2014.

18        The State opposes Mr Spencer’s application. It notes that “many of the difficulties identified are inevitably incidental to the demands upon a party in large scale litigation”. It observes that the difficulties Mr Spencer claims to be experiencing have been present for some time:

for instance, it appears that the applicant's case was funded until 10 months ago. Between December 2013 and September 2014, in spite of the funding issues the applicant was facing, the applicant attended and/or was represented at a number of directions hearings before this Court. The applicant's legal representatives participated in discussions at those directions hearings concerning the appropriate timetable to bring this matter to hearing and indeed pressed for a hearing. The matter was given this hearing date at the directions hearing before Gleeson J on 22 May 2014.

19        The State submits that Mr Spencer has had a number of opportunities at the various directions hearings held before me and before Gleeson J, since the matter was listed for hearing, to raise the issue of his funding difficulties, and has not done so. It submits:

In the circumstances, and given that funding has not been forthcoming despite the applicant's best efforts since December 2013, there is no sufficient basis for thinking that a vacation of the hearing date would result in any material improvement to the applicant's position.

20        With respect to Mr Spencer’s personal situation and health difficulties, the State submits:

As to Mr Spencer's health matters, unfortunately, litigation is an inherently stressful activity. No doubt all parties and practitioners will do their best to avoid causing unnecessary stress to each other. It is to be doubted whether a vacation of the hearing date would produce any benefit in this regard; on the contrary, the applicant identifies an expectation of personal difficulties in the new year including the need to seek alternative accommodation (paragraph 6). In those circumstances it would appear preferable to proceed with the existing hearing date with a view to finishing the trial before the new year.

21        The State also seeks its costs thrown away should the hearing be vacated, and its costs of this application. Finally, it notes:

However, it should be noted that costs orders are highly unlikely to offer any practical salve to the respondents in this case.

22        In oral submissions, senior counsel for the State submitted the plurality in Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 recognised four matters which should be taken into account by a Court when exercising its discretion: the explanation for the adjournment sought (at [108]); the parties’ choices to date in the litigation (and the consequences of those choices) (at [112]); the detriment to other parties, and the detriment to other litigants in the Court (at [114]). He submitted that Mr Spencer’s evidence about a possible new legal team was speculative and could not be relied upon. He submitted that Mr Spencer’s oral explanation to the Court revealed if anything an expansion of the case rather than a contraction, as well as revealing that the explanation for the termination of the instructions of his legal representatives was not only financial, but related to strategic choices about the conduct of the litigation. The evidence revealed Mr Spencer had 10 months after the funding from the Australian Farmers’ Fighting Fund ceased to make new arrangements for his then lawyers, or to secure new ones, and he had not done so. This should not give the Court any confidence, the State submitted, that if the matter were adjourned Mr Spencer would be successful in securing legal representation.

23        In oral submissions, counsel for the Commonwealth confirmed the Commonwealth neither consented nor opposed the application, but did seek costs. In response to some of Mr Spencer’s material, counsel informed the Court he was instructed the Commonwealth had paid all the costs it had been ordered to pay by the High Court. He also confirmed that, despite a change in the principal solicitor responsible for the conduct of the case on behalf of the Commonwealth, the Commonwealth was ready and willing to begin the trial on 24 November 2014 and would continue to conduct it responsibly and in accordance with its model litigant obligations.

THE COURT’S POSITION

24        If an adjournment were to be granted, I could not hear the proceeding until the second half of 2015, and late into the second half. Other Sydney judges may be available in the first half but that means another change of docket judge and a loss of what familiarity has been gained with the matter. The lack of continuity is, as I have noted above, a specific complaint made by Mr Spencer.

CONSIDERATION

25        Mr Spencer’s evidence was unequivocal that he had terminated the retainer of his solicitors and counsel. I proceed on the basis he is currently self-represented. It was also clear from his evidence that, if the trial were to proceed on 24 November 2014, he would be self-represented at trial. He did not suggest there was any possibility, let alone a reasonable one, that he would secure funding for a new “legal team” before that date. One of the principal reasons he sought the adjournment was to allow time to raise and source funds in order to find and retain new legal representatives. Therefore my consideration of the adjournment application is based upon the assumption that, if the adjournment is refused, Mr Spencer will have to conduct the trial himself.

26        What I take from most of Mr Spencer’s evidence and submissions is that he is concerned to have a fair opportunity to present his case. He is not submitting he is entirely incapable of running the trial himself. Nor is he submitting he is incapable of running the trial for three weeks starting on 24 November 2014. Rather, he is submitting that some accommodation needs to be made if that is to occur. Understandably, he has felt overwhelmed at the prospect of what has to be done, now the reality of having terminated the retainer of his lawyers a month before trial is upon him.

27        My impression of Mr Spencer is that he is an intelligent man, who is capable of acting responsibly and sensibly in the conduct of this proceeding, while retaining his obvious conviction about the correctness of his cause.

28        In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction. That overarching purpose is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible: see s 37M(1) of the Federal Court Act.

29        That overarching purpose encompasses the following objectives, which must be taken into account in determining how the grant or refusal of an adjournment promotes that purpose (see s 37M(2)):

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

30        These objectives set out in statutory form some of the considerations earlier expressed as conditioning the discretion in any event. In Sali v SPC Ltd (1993) 116 ALR 625 at 629, Brennan, Deane and McHugh JJ said the Court must be conscious of the “effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties”.

31        In Aon 239 CLR 175; [2009] HCA 27 at [5], French CJ referred to the broader considerations at work in considering an adjournment application:

In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.

…

32        The plurality expressed a similar opinion at [93]:

…the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants…

33        I note Mr Spencer’s affidavit did have a flavour that might suggest he wished to drive the timetable in this proceeding. His reference to a need to “re-set the agenda” can, however, be put in better context given what he said at the hearing about disagreements with strategies employed by his legal representatives. At hearing I found Mr Spencer to be responsive and cooperative, and I have some confidence that he will do his best to cooperate with any fair and reasonable timetable set by the Court.

34        Mr Spencer has provided an explanation for the adjournment application: namely, the termination of the retainer of his legal representatives. I accept that explanation as truthful, including his elaboration that the termination of the retainer was not solely due to funding issues, but rather to differences of opinion between him and his lawyers about the conduct of the proceeding. It is understandable that those differences may become more obvious, and more pressing, as trial approaches.

35        I consider that the other matters Mr Spencer has relied on, and which I have set out at [7]-[9] above, are put forward as matters supporting why, given that fundamental change in circumstances, an adjournment should be granted. In other words, Mr Spencer is pointing to the heavy nature of the burden that now falls on him, and the possible additional toll on his health, his family obligations, and his capacity to present his case. Those are all legitimate concerns.

36        Mr Spencer had provided an alternative timetable and is endeavouring to be cooperative about future trial planning.

37        Nevertheless, I have concluded that the facilitation of the just resolution of this dispute, taking into account the factors set out in s 37M(2) of the Federal Court Act, is best promoted by refusing the adjournment application, while making significant accommodations for Mr Spencer to conduct the trial on his own behalf. I do not consider the fairness of the trial to Mr Spencer will be compromised if reasonable accommodations are made for him both before and during the trial.

38        This matter has been in the Court for over seven years. On any view that is too long. It has been more than four years since the High Court remitted the matter for trial. On any view that is too long. Who bears responsibility for the passage of too many years is not relevant to my decision: it is the fact of the passage of such a long time which is an important consideration. Adjourning the matter until well into next year (April 2015 at the earliest, even on Mr Spencer’s proposed timetable) is likely to mean no judgment will be delivered until 2016, and, in turn, any appeals from that judgment may still be running into 2017. It is important to recall that the progress of a proceeding in this Court does not stop with the commencement of a trial, and the furtherance of the overarching purpose must be seen in that context.

39        Most of the trial preparation is completed. The closeness to trial is relevant for at least two reasons. First, because there is little imposition on Mr Spencer in terms of further preparation. What preparation there is I propose to ameliorate with directions I explain in detail below. Second, as senior counsel for the State submitted, solicitors and counsel, respondent clients, and witnesses on both sides have committed to a particular timetable and made themselves available. To disrupt that and find a new three-week period to accommodate everyone would not only be difficult, but would involve a vast waste of the time and resources which have been expended to date. The closer to trial a matter gets, the more intensive the preparation. Especially so for a case which has been in preparation for as long as this one. Much of that preparatory work is, as senior counsel for the State submitted, lost entirely with an adjournment and has to be re-done. No costs order can compensate for this — it is a human cost.

40        The laws under challenge in this case are, as senior counsel for the State submitted, the subject of controversy. Their validity or invalidity is a matter which should be resolved. I do not consider any uncertainty over the validity and operation of these laws should be perpetuated by postponing the trial for almost a year, taking into account the uncertainty is not resolved until judgment is delivered.

41        Mr Spencer has complained about the number of judges in this Court to whom this matter has been docketed. He has pointed out the lack of continuity which results from changes in the docket judge. That proposition is correct. He accepts, in my opinion correctly, that it would be disruptive for this matter to be moved again out of my docket to accommodate a hearing in May or June 2015, which is only a matter of months before I can hear the case. On that basis I do not consider an adjournment is warranted simply because it may be possible to find another judge to hear the matter in May or June 2015. Other factors are of more weight.

42        There has been a choice made by Mr Spencer to terminate the retainer of his legal representatives. I am satisfied from his evidence and his submissions he has taken that decision in the best interests of presenting his case in the way he considers it should be presented. He will not lose that opportunity if the trial proceeds on 24 November 2014. He may need some accommodation from the Court, with the cooperation of the respondents, but as he conceded, in some ways, he is the person who knows his case best of all.

43        A three-week trial is a resource intensive exercise for the Court. It occupies a considerable period on the Court’s timetable which otherwise could have been given over to quite a number of litigants. Other litigants are waiting longer for their matters to be heard because of this listing in November. That is a factor of some weight in a busy Court, which over a period of three weeks would otherwise have the capacity deal with quite a few proceedings. It is unlikely that within a month other litigants can be brought on at such short notice without compromising the conduct of their proceedings.

44        There are currently 20 witnesses scheduled to give evidence, including 11 experts. All those witnesses (even if I exempt Mr Spencer from this list) have made themselves available for a trial in November. The Court is always conscious of the demands on expert witnesses in particular, who appear to assist the Court. Their schedules should not be disrupted at the last moment without very good reason, all the more so when there are a large number of them.

45        The matters set out in [38] to [43] above all relate to the objectives in s 37M(2)(a)-(d) of the Federal Court Act. Subject to what I say at [49] to [60] below, in my opinion they all weigh in favour of the overarching purpose being best promoted by refusing the adjournment application.

46        I am not in a position to determine how proportionate the costs which have been incurred in this proceeding are to the importance and complexity of the matters in dispute (s 37M(2)(e)). What I can determine, with some confidence, is that whatever proportionality currently exists cannot be improved by a further adjournment.

47        There is no doubt a trial is stressful, and more so a hotly contested one where there are considerable divisions between the parties. I accept Mr Spencer’s evidence about the toll this proceeding has taken on him and his family. Nevertheless, this is a proceeding he has chosen to bring, and to continue. He has now chosen to continue it without his former legal representatives. It seems to be he is comfortable about that choice. He is, as any other litigant, entitled to a fair trial but stress, anxiety and health effects are unfortunately frequent incidents of a trial process. The Court can seek to ameliorate them for all parties to some extent in the way the matter is conducted however none of these matters are alleviated or removed by postponement of a trial date. Indeed, they may well be increased.

48        Mr Spencer sought and was granted leave to consider overnight whether, in the face of exchanges about possible accommodations that might be made for him to conduct the trial on 24 November 2014, he wished to press his application for an adjournment. Leave was granted for Mr Spencer to inform the Court of his position by email before 9 am on Friday 17 October 2014. Mr Spencer did not comply with that time limit, but did send a four page document by email at approximately 11 am on 17 October. In that document, Mr Spencer makes it clear he continues to press for an adjournment of the trial date. The document contains a variety of allegations and submissions on other matters. Mr Spencer was not granted leave to make any further general submissions or adduce further evidence. I accept this is not a distinction Mr Spencer may, as a lay person, appreciate and I do not criticise him for taking the opportunity to say more. However, in the absence of leave it would be inappropriate for me to consider the rest of the content of that document for the purpose of deciding this interlocutory application, and I have not done so.

What accommodations could be made for Mr Spencer while retaining the trial date?

49        I consider that the question of what accommodations can practically and reasonably be made for Mr Spencer is determinative of the outcome in this application. If no accommodations could be made for him, it may well be that to proceed to trial in a month in a case of this nature when he is now self-represented would result in a level of unfairness to him that would be inconsistent with the just resolution of this dispute.

50        I am satisfied, however, that considerable accommodations can be made. I discussed a range of proposals with the parties at the hearing of this matter. Mr Spencer was agreeable, and indeed grateful, to accept all of them except one.

51        The Commonwealth and State needed to confirm their position on one matter, namely the suggestion that the respondents prepare and file the Court Book, rather than the applicant. The Commonwealth responded by email with a conditional proposal, which indicated a qualified agreement to prepare the Court Book. I have considered the Commonwealth’s proposal and have accepted it in part. However, I consider in the circumstances and given the burden imposed on Mr Spencer by my refusal of the adjournment that the Commonwealth should in any event prepare the Court Book. In order for this matter to be ready for trial on 24 November 2014 all parties will need to compromise their positions.

52        I suggested to Mr Spencer that I might consider making a pro bono referral under r 4.12 of the Federal Court Rules. I indicated it would be of limited nature — to advise on preparation for trial, to prepare an outline of submissions, and final submissions, and perhaps to appear for limited periods during the trial. Mr Spencer indicated quite forcefully why he was not interested in such an order. I do not consider that particular accommodation any further. It may be, once the trial begins, or when it ends and final written submissions are due, he wishes to reconsider his position, although securing pro bono assistance would then no doubt be more difficult.

53        On the express basis that Mr Spencer remains unrepresented, I am prepared to make orders and give directions to ensure the following accommodations to him, so that the trial can commence on 24 November 2014.

54        There will be a modification of the timetable for filing of reply evidence prior to trial to give Mr Spencer extra time, and to allow for his lack of familiarity with what is required. He will be required to file and serve his reply evidence with his outline of submissions on or before 13 November 2014, having reduced as much of it to writing as is possible. In order that the filing of the Court Book not be delayed, he will be directed to file this evidence as a bundle in the form of a supplementary Court Book.

55        Liberty is reserved to Mr Spencer to apply to adduce any reply evidence he has not been able to file by 13 November 2014 in oral form from the relevant witness during the trial. Leave is unlikely to be granted if there has not been substantial compliance with the previous order: that is, Mr Spencer should attempt to file as much reply evidence in writing prior to trial as he can.

56        There will be modification of the timetable for filing of outlines prior to trial to give Mr Spencer extra time. His submissions will be due on 13 November 2014 instead of 10 November 2014. The respondents’ outlines will be due on 20 November 2014 instead of 17 November 2014.

57        The Court will provide an electronic copy of the transcript of the trial to Mr Spencer. I consider that in a trial of this nature and complexity, it is unreasonable to expect Mr Spencer to work from notes taken in Court, especially given he is conducting the trial himself. Both in the running of the trial and in the making of final submissions he will be put at a disadvantage which in my opinion puts at risk the fairness of the trial, given I am requiring him to proceed to trial in a month’s time. The transcript will be provided electronically, on a USB, which will be updated daily and available for collection each morning at 9 am. Mr Spencer is prohibited from further copying or distributing, or printing, the electronic transcript and access to it is given solely for the purpose of Mr Spencer preparing and presenting his case at trial, and for no other purpose. The USB is to be returned to the registry at a date to be specified by the Court, which date will be after the filing of final submissions in the proceeding. If printing parts of the transcript appears necessary at a later stage, Mr Spencer can apply to vary this order.

58        The Commonwealth is to prepare, file and serve copies of the Court Book in this proceeding. The Court Book may be in electronic form if the parties agree. The Commonwealth is to provide one copy of the Court Book in hard copy to Mr Spencer. The parties are to confer, with the assistance of a Registrar, on precise arrangements in respect of the Court Book in accordance with the directions I have made on the Commonwealth’s request. I currently have a firm view that the respondents should assume the burden of preparing the Court Book, although the size of the court book is of concern and I have endorsed, through directions, an approach to reduce its size and if need be the matter can be brought before a Registrar for resolution of any outstanding issues.

59        Final submissions in this matter will be ordered to be filed in writing, after the close of evidence and in accordance with a timetable to be set by the Court, and which gives Mr Spencer a reasonable time to prepare his final submissions. Oral submissions may be required at a date to be fixed by agreement in 2015.

60        Any requests for leave to issue subpoenas for witnesses at trial are to be filed by 10 November 2014. Any such requests will be copied to the other parties in the proceeding and they will have an opportunity to make submissions in relation to the request.

Associate:

Dated:    17 October 2014