FEDERAL COURT OF AUSTRALIA

Lamont v University of Queensland (No 1) [2019] FCA 897

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an adjournment of the hearing commencing on 25 July 2019 is dismissed.

2.    The applicant shall file and serve written closing submissions by 4 pm on 19 June 2018.

3.    The respondent shall file and serve written closing submissions by 4 pm on 17 July 2019.

4.    The applicant shall file and serve any written submissions in reply by 4 pm on 23 July 2019.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant has applied for an adjournment of a hearing listed for two days commencing on 25 July 2019.

2    In the principal proceeding, the applicant seeks compensation and other remedies for the respondents’ alleged contraventions of ss 50 and 340 of the Fair Work Act 2009 (Cth) (the FW Act) and breach of contract.

3    The evidence was heard over nine days between 11 and 21 March 2019. At the conclusion of the evidence, the matter was adjourned to 25 July 2019 for the hearing of oral submissions. Orders were also made for the applicant to file and serve written closing submissions by 3 May 2019, for the respondents to file and serve their submissions by 14 June 2019 and for the applicant to file and serve submissions in reply by 5 July 2019.

4    On 2 May 2019, the applicant’s solicitors sought the agreement of the respondents’ solicitors to an extension of time for the filing and service of the applicant’s written closing submissions. The respondents’ solicitors agreed, and on 10 May 2019, orders were made extending the time to 24 May 2019.

5    On 20 May 2019, the applicant’s solicitors requested another extension of time for the filing and service of the applicant’s written closing submissions. The respondents’ solicitors agreed to a further extension to 7 June 2019.

6    On 2 June 2019, the solicitors for the applicant wrote to my associate as follows:

I write to advise that the applicant, Dr Lamont, is unable to complete his review of the Closing Submissions by this Friday, 7 June 2019 as per the revised Consent Orders. We anticipate requiring a further 4 weeks to do so from this Friday, 7 June 2019. The delay is occasioned by his working full-time with the consequence that he only has limited time in the evenings and on weekends to undertake the review of these submissions cross-referenced with the transcripts. As well there was a two week delay in commencing the drafting of the submissions occasioned by our wait for the transcripts and Dr Lamont’s temporary incapacity brought about by breaking his foot.

I am writing therefore to seek new hearing dates for the parties’ [sic] to address his Honour on the Closing Submissions and Reply which have originally been set down for 25/26 July 2019.

The respondents’ solicitors oppose the vacation of the dates in July.

7    I indicated through my associate that I was prepared to treat the applicant’s solicitor’s email as an application for an adjournment of the hearing. The parties subsequently agreed a timetable for the filing and service of evidence and the exchange of submissions, and agreed to the application for adjournment being decided on the papers.

8    The applicant has filed an affidavit in support of his application, but has not filed any written submissions. The respondents have filed an affidavit and have also filed written submissions.

9    In his affidavit, the applicant deposes, relevantly:

    On 31 March 2019, he suffered an injury to his foot and was unable to walk or work until 4 April 2019 as a result of pain and the effects of strong pain killers.

    He has been very busy with his work at the University of Queensland.

    He spent a large amount of time working on his written closing submissions, with the result that his family and social life have suffered.

    He had to wait until six weeks after the hearing to receive 13 affidavits of witnesses called at the hearing.

    He was unable to obtain the transcript until two weeks after the completion of the trial.

10    The applicant also deposes that:

There reason I have not completed the submissions to the Court is not because I have a disrespectful attitude to the Court orders nor have I been neglectful, in any way, with respect to my duties. On the contrary I have devoted all my time and resources to try and comply.

…

In terms of financial resources, I have already spent more than my total annual salary this year on Court costs and employing lawyers to help me meet deadlines and prepare my case and submissions.

11    The basis of the applicant’s application for an adjournment is his claim that he is unable to comply with the requirement to file written closing submissions by 7 June 2019. I consider that the matters most significant to the application are:

(1)    The length of time that the applicant has already had for the preparation of written closing submissions.

(2)    The adequacy of the applicant’s explanation for failing to do so.

(3)    Any prejudice to the respondents.

(4)    The inconvenience and disruption to the Court.

12    At the conclusion of the hearing of evidence on 21 March 2019, the applicant’s lawyers proposed that that they be given six weeks to file and serve the applicant’s written closing submissions. On that basis, they were given until 3 May 2019 to do so. They then sought further extensions and were allowed until 7 June 2019, a further four weeks, to comply. Ten weeks is a lengthy time for the preparation of written closing submissions.

13    I do not accept that any adequate explanation has been provided for the applicant’s inability to prepare written closing submissions by 7 June 2019, or his inability to proceed with the hearing on 25 and 26 July 2019. The reasons offered by the applicant for not being able to prepare the submissions are largely concerned with his own commitments and his own limited availability to prepare the submissions. However, the applicant is represented by solicitors and counsel. It is the role of the lawyers to prepare the written submissions—not their client. In fact, it would be disturbing if it is proposed that the written submissions presented to the Court are a document prepared by the applicant. The applicant is not a lawyer, and obviously lacks the forensic skills and judgment of a lawyer. The Court should not be placed in a position of having to rely on written submissions prepared by a lay person in circumstances where the person is represented.

14    When a party is represented, the task of preparing written submissions is primarily one for the party’s lawyers. The applicant deposes to already having spent more on legal fees this year than his annual salary. That is both surprising and alarming. In an earlier affidavit, he deposed that his legal fees to April 2019 had been approximately $373,000. The applicant’s lawyers should be well aware of their obligations under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). Their obligation to assist their client to facilitate the just resolution of the dispute as efficiently as possible must, in my opinion, include the exercise of their professional judgment and discernment in the preparation of written submissions.

15    In view of the respective roles of the applicant and his lawyers, it is unclear why the applicant’s own work and other commitments have meant that the written submissions have not been able to be prepared. I note that the applicant’s injury meant that he was unable to work on the submissions for five days, at most. Further, the two week delay in obtaining the transcript seems to be the fault of the applicant’s solicitors, who apparently failed to approach the solicitors for the respondent prior to or during the hearing of the evidence with a proposal to share the cost of purchasing the transcript. In any event, the two week delay in obtaining the transcript was not significant. It is unclear why the applicant’s solicitors took six weeks to provide the applicant with copies of the affidavits. The applicant’s solicitors have not offered any explanation for their failure to prepare the submissions.

16    In these circumstances, I am not satisfied that the applicant has demonstrated an adequate reason for any inability to prepare the written closing address by 7 June 2019, or any reason for the adjournment of the hearing.

17    I accept that the respondents have demonstrated that they would be prejudiced if the trial were adjourned. The respondents correctly point out that in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [100]–[101], the plurality emphasised that inconvenience and stress are significant consequences of the prolonging of litigation, even in a proceeding where costs are recoverable. There are four individuals who are respondents to the litigation. There is evidence that the second respondent has found it difficult to cope with the stress of the proceedings and that waiting for an outcome of the matter is causing him considerable stress and strain. The same can be assumed of the other three individual respondents, against whom serious allegations have been made.

18    In addition, the Court has set aside two days for the conclusion of the hearing. In Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47, Toohey and Gaudron JJ observed at 636 that, “conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard.” The proper use of the Court’s resources is a fundamental consideration in the exercise of the discretion to grant or refuse an adjournment. The adjournment of the hearing would result in the existing dates being wasted and other hearing dates having to be found in the future. This would be a matter of inconvenience for the Court and, potentially, to other litigants who may consequently face delay in having their matters heard.

19    The applicant has not demonstrated adequate grounds for an adjournment and the application for an adjournment will be refused.

20    As the applicant has not yet filed his written closing submissions, further orders will be made for the filing and service of submissions by the parties.

Associate:    

Dated:    12 June 2019

SCHEDULE OF PARTIES