Federal Court of Australia

Pauga v Chief Executive of Queensland Corrective Services (No 2) [2022] FCA 252

ORDERS

THE COURT ORDERS THAT:

1.    The hearing listed for 14 March 2022 to 18 March 2022 be adjourned to a date to be fixed.

2.    The costs of and occasioned by the adjournment be reserved.

3.    Any and all interlocutory applications that the applicant seeks to make be filed and served on or before 23 March 2022.

4.    Any such applications be listed for hearing on 29 March 2022 at 9.00 am (AWST).

5.    There be no subpoenas issued in this matter without the leave of the court.

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

ORDERS

THE COURT ORDERS THAT:

1.    The hearing listed for 14 March 2022 to 18 March 2022 be adjourned to a date to be fixed.

2.    The costs of and occasioned by the adjournment be reserved.

3.    Any and all interlocutory applications that the applicant seeks to make be filed and served on or before 23 March 2022.

4.    Any such applications be listed for hearing on 29 March 2022 at 9.00 am (AWST).

5.    There be no subpoenas issued in this matter without the leave of the court.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Pauga has been committed to prison under s 19 of the Extradition Act 1988 (Cth). The warrant of committal was issued on 9 July 2021. Since then, he has been seeking statutory review in this court under s 21 of the Extradition Act. In separate proceedings, he also claims that he is being unlawfully detained and seeks an order that he be released from custody or, in the alternative, the issue of a writ of habeas corpus. Mr Pauga also seeks declaratory relief, to the effect that he was not lawfully on remand at the time of his committal on 9 July 2021.

2    Since September 2021, both proceedings have been case managed together on the basis that they would be heard this week. The fixing, at that time, of the hearing dates in March 2022 was made at the request of counsel for Mr Pauga. Since January 2022, there has been a likelihood that the hearing would be conducted remotely using the Microsoft Teams platform. All interlocutory hearings in this matter have been conducted using that platform without difficulty.

3    On the morning that the final hearing was scheduled to commence, counsel for Mr Pauga, Mr Mancini, and his solicitor, who also acts as co-counsel, Mr Finlayson, were advised that they were close contacts of a person who had tested positive to having contracted COVID-19. As a result, they have been unable to leave their homes to attend the office where they had set up their materials to participate in this hearing. This hearing involves a substantial, although not overwhelming, amount of material, including a significant number of affidavits. Some of the affidavit materials have been prepared late in the day. Indeed, Mr Mancini has indicated that he will seek to adduce a further affidavit about certain of the materials relied upon in the s 19 proceedings for the final hearing and that affidavit, which is not yet complete, is with the materials that are kept in the separate office set up for the conduct of these proceedings.

4    The first day of the hearing was a public holiday in South Australia, which is where Mr Mancini and Mr Finlayson are resident. In the circumstances, the proceedings were adjourned for a day to afford them time to arrange to make every effort to obtain the materials and to make arrangements so that they could appear from their respective homes for the conduct of these proceedings. This morning, an application is made to vacate the hearing, on the basis that it is not possible to make those arrangements. Each of Mr Mancini and Mr Finlayson has deposed to the circumstances they say prevent them from being able to appear and present the applications for Mr Pauga. The difficulties deposed to by them are these.

Matters relied upon to support an adjournment

5    First, Mr Mancini and Mr Finlayson must each isolate separately at home for the duration of the scheduled hearing as this is a legal requirement in South Australia.

6    Secondly, Mr Mancini works from physical copies of the brief which, as I have indicated, comprises a significant, although not, might I say, overwhelming amount of material by modern litigious standards.

7    Thirdly, the materials comprising the brief are said to be laid out in a form at the office, which enables them to be managed and accessible, including by use of tables and screens and the like that have been set up to enable the hearing to be conducted.

8    Fourthly, the place where the materials and the like have been set up is in an office in the city centre of Adelaide that was arranged to enable the hearing to be conducted remotely.

9    Fifthly, despite efforts made yesterday, it was not possible to arrange for the delivery of those materials, bearing in mind that neither Mr Mancini nor Mr Finlayson is able to leave their respective homes.

10    Sixthly, in any event, Mr Mancini and Mr Finlayson have been working as co-counsel on the matter, and the affidavit material says it will not be possible for them to present the case effectively if they are in separate locations, having regard to the manner in which they have been working and the way in which the case has been prepared.

11    Seventhly, the circumstances at each of the homes of Mr Mancini and Mr Finlayson are said to be not conducive to being able to appear remotely to conduct the long hearing. In the case of Mr Finlayson, he is sharing his home with others, including his daughter, who has contracted COVID-19, and each member of the household is required to self-isolate within the same home. Further, the equipment that he would normally have at home has been moved to the room in the city. In the case of Mr Mancini, he lives in a small home with one bedroom and is confined in his ability to spread out materials. He says he does not have proficiency to manage materials electronically for a hearing. Mr Mancini deposes to his experience in practice over many years where he has worked by reference to hard copy materials, and that is his usual way of working.

12    Finally, the representatives of Mr Pauga are unfunded, and it is apparent from the affidavit material that the resources available to them in order to make arrangements that might be made are limited.

Matters relied upon to oppose an adjournment

13    The application is opposed by the respondents, save for those respondents who have taken a position throughout of abiding by the proceedings. The matters raised in opposition focus upon case management principles and the history of the way in which this matter has unfolded. They are there these.

14    Firstly, there have been delays in the matters to date occasioned by those acting for Mr Pauga, which is not disputed by Mr Mancini, and is certainly evident from the court record.

15    Secondly, it is submitted that the explanation that has been provided is not sufficient to demonstrate why arrangements could not be made to set up, in effect, in the two homes of Mr Mancini and Mr Finlayson so that they could conduct the proceedings. There is something to be said for that submission because the efforts that have been made seem to involve contacting removalists for the purpose of removing the entirety of what is set up in the room in the city so that it can be set up in a similar way, presumably in the home of Mr Mancini. However, that aspect of the submission does not deal with the evidence of Mr Mancini concerning his usual way of working and the way in which Mr Mancini and Mr Finlayson say that they work as co-counsel and the difficulties that would follow if they were required to conduct these proceedings from separate homes without the immediacy of being able to, in effect, present the case together.

16    Thirdly, it is said that it would be contrary to the principles of case management for this matter to be adjourned, it having been case managed with significant indulgence and difficulty, in effect, to get the matter to the point where this hearing has been scheduled. Again, there is something to be said about the compliance by those acting for Mr Pauga with case management principles to date, but those principles, in effect, require all considerations to be weighed, and I will come to those shortly.

17    Fourthly, it is said that there is no need for a large room or a bar table or for arrangements for moving in furniture in order to be able to present the case. However, there is, evidence in the affidavit material and the video location from where Mr Mancini has been presenting submissions, that the available space is quite confined and there will be difficulties to some extent created by those aspects.

18    Fifthly, it is said that there would be a significant expense to the public as a result of the vacation of the hearing, there are a number of respondents who are represented and time has been set aside. No doubt there will be significant costs which will have to be borne by the public, given the character of the parties who are appearing in this particular matter, if the matter is adjourned.

19    Finally, it is said, in effect, that there was insufficient planning by those acting for Mr Pauga and steps should have been taken by way of Mr Mancini and Mr Finlayson to allow for a means of coping with events of this kind. I think the difficulty with that submission is that plainly steps have been taken to enable this matter to proceed by way of the Teams platform. The difficulty that has arisen is due to the need, at very short notice at the last minute, to have to change those arrangements in order for counsel to present the case from separate locations in circumstances where Mr Mancini, on his own evidence, is not familiar with presenting a case electronically and therefore cannot switch to using electronic materials in lieu of the physical bundles.

Relevant principles

20    The principles to be applied in considering an application of this kind are well-established. They were recently summarised by Cheesman J in ANZ v James [2021] FCA 768 at [44] to [47] and are as follows (excluding reference to authority):

The considerations relevant to whether a Court ought to exercise its discretion to grant an adjournment are similar to the matters a Court will have regard to for the purposes of an application to amend pleadings. Any application for an adjournment must be considered in the relevant statutory, factual and case management context…

The Court may make an order adjourning the proceedings if it considers doing so would be appropriate in the interests of justice... The discretion to do so must be exercised in a way that best promotes the overarching purpose of civil practice and procedure provisions, namely the just resolution of disputes according to law and as quickly and inexpensively as possible. Relevantly, the overarching purpose includes the following objectives…:

Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(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; and

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

…

When determining whether to grant or refuse an adjournment, the doing of justice between the parties is a paramount consideration. If an adjournment is necessary to allow a party that opportunity it ordinarily should not be refused unless it would result in irremediable prejudice or injustice to the other party and an order for costs would not be sufficient compensation to that party…

Further, in considering the question of an adjournment, the Court is not required to limit itself to the competing interests of the parties. Rather, the Court may consider the effect of an adjournment on its resources and the competing claims of litigants in other cases as well as the interests of the parties. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources…

21    Those principles, in effect, require a decision to be made in the interests of justice, but informed by the modern approach to case management which places more emphasis on the need for parties to have in place the resources and to undertake the steps necessary in order to avoid, wherever possible, adjournments and delays of court hearings.

The adjournment application should be allowed

22    In this particular matter, I accept that the matters that have been deposed to do give rise to difficulties for Mr Mancini and Mr Finlayson in being able to present the case for Mr Pauga. Those difficulties arise particularly from the manner in which, on their evidence, they work together in that presentation, and, indeed, in the course of the interlocutory conduct of this matter, I have seen that process in action.

23    It is also necessary to have in mind the subject matter of these proceedings. They are proceedings which concern the liberty of Mr Pauga and I am concerned that the prejudice that will be suffered in the conduct of these applications is one that must be weighed in the context of the subject matter of the proceedings.

24    In my view weighing the considerations to which I have referred, the application for an adjournment should be allowed. The matter is, perhaps, somewhat finally balanced. But in the result, I am concerned that, having regard to the subject matter of the proceedings, it would not be appropriate to require counsel to press on in circumstances where the presentation of the case will be, in my view, be prejudiced albeit that some steps might be able to be taken to ameliorate that prejudice.

25    It seems to me that it may still be appropriate to use part of this hearing time to deal with some of the issues and I will hear from the parties as to whether there are parts of the application or aspects of the matter which might be dealt with.

Associate:

Dated:    18 March 2022

SCHEDULE OF PARTIES