FEDERAL COURT OF AUSTRALIA PRACTICE AND PROCEDURE – application for adjournment – recently discovered documents – discretion of trial judge – importance of adherence to trial date Paterson v Paterson (1953) 89 CLR 212 Browne v Dunn (1893) 6 R 67 Abalos v Australian Postal Commission (1988) 171 CLR 167 WILLIAM HOLLIER and ENGEN INSTITUTE v AUSTRALIAN MARITIME SAFETY AUTHORITY & ORS NOS. VG 667 of 1997 and VG 116 of 1998 JUDGES: HEEREY, WHITLAM AND NORTH JJ DATE: 24 JULY 1998 PLACE: MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 667 of 1997 VG 116 of 1998 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: WILLIAM HOLLIER First AppELLANT ENGEN INSTITUTE (ARBN: A25398A) Second APPELLANT AND: AUSTRALIAN MARITIME SAFETY AUTHORITY FIRST RESPONDENT STATE OF TASMANIA SECOND RESPONDENT MINISTER FOR WORKPLACE RELATIONS THIRD RESPONDENT JUDGES: HEEREY, WHITLAM AND NORTH JJ DATE OF ORDER: 24 JULY 1998 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal and application for leave to appeal are dismissed. 2. The appellants have leave to file and serve written submissions as to costs on or before 31 July 1998. 3. The appellants have leave to file and serve written submissions as to costs within seven days thereafter. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 667 of 1997 VG 116 of 1998 on appeal from a judge of the federal court of australia BETWEEN: WILLIAM HOLLIER First Appellant ENGEN INSTITUTE (ARBN: A25398A) Second Appellant AND: AUSTRALIAN MARITIME SAFETY AUTHORITY FIRST RESPONDENT STATE OF TASMANIA SECOND RESPONDENT MINISTER FOR WORKPLACE RELATIONS THIRD RESPONDENT JUDGES: HEEREY, WHITLAM AND NORTH JJ DATE: 24 JULY 1998 PLACE: MELBOURNE REASONS FOR JUDGMENT On 22 July 1998, at the conclusion of the appellant's argument, the Court ordered that the appeal be dismissed. The Court indicated that reasons would be published subsequently. We now publish our reasons. The first appellant (Mr Hollier) claims an equitable right of possession, on a permanent and indefinite basis, of Deal Island. Deal Island is situated at the eastern end of Bass Strait, about halfway between Flinders Island and Wilson's Promontory. It has an area of approximately 1625 hectares. The only structures on the island are a lighthouse (the highest in Australia) and associated buildings. The lighthouse was erected in 1848 and operated until 1992. At this stage the first respondent the Australian Maritime Safety Authority (the Authority) had become the Commonwealth body responsible for the management of Australian lighthouses. As part of the general phasing out of traditional lighthouses the Authority adopted a policy of offering them to the State in which they were situated. In the event of the State's non-acceptance, the lighthouse would be offered to a local government body. If that offer was not accepted the lighthouse would be put up for public tender. In accordance with this general policy the Authority proposed offering Deal Island to the State of Tasmania. It was envisaged that negotiations would take some twelve months. To provide for maintenance of the island in the intervening period the Authority called for tenders for a twelve month tenancy. Mr Hollier was the successful tenderer. On 16 June 1992 he entered into a written agreement with the Authority which provided for twelve months' occupancy in consideration of a rental of one dollar and a covenant to keep a continuing manned presence on the island and to carry out certain maintenance. At the end of the twelve month period the Authority could review the rental and the agreement was to be "on a monthly basis thereafter". Mr Hollier's case before the learned trial judge, Sundberg J, was that in February, March or April 1992, two officers of the Authority, a Mr Oxley and a Mr Banks, made a promise to Mr Hollier that provided he satisfactorily fulfilled a number of conditions during a 12 month trial period he would obtain "permanent and exclusive occupancy rights to the island and could establish a Research Institute". It was on this factual foundation that Mr Hollier's claim for a permanent occupation was based. The legal consequences alleged were that there was a proprietory estoppel against the Authority which prevented it from interfering with Mr Hollier's possession, or alternatively the Authority held the island on a constructive trust for him, or alternatively there was a specifically enforceable contract which entitled him to permanent or indefinite possession. Sundberg J found as a fact that Messrs Oxley and Banks did not make the promises alleged. As a consequence his Honour dismissed Mr Hollier's claim. On Mr Hollier's appeal his Honour's decision was attacked on both procedural and substantive grounds. The procedural grounds were, first, that his Honour wrongly refused Mr Hollier an adjournment to enable him to inspect a substantial quantity of documents which the Authority had only recently made available. Secondly, it was said that his Honour did not give adequate advice and assistance to Mr Hollier (who was then unrepresented) in the course of the trial. The substantive ground was that his Honour should not have drawn the inferences of fact which led him to the conclusion that Mr Hollier's version of the critical conversations was to be rejected. Procedural Grounds To understand this ground it is necessary to refer to the course the litigation took. On 24 October 1997 the Authority gave Mr Hollier notice to quit the island in 30 days. On 28 November Mr Hollier filed an application VG 667 of 1997 and an affidavit in support. By his application he sought an interlocutory injunction to restrain the Authority taking possession of the island. The application for interlocutory relief came on before Sundberg J on 12 December. It was in substance resolved by the Authority giving undertakings not to take possession for a limited period, this being on the basis that a trial could be heard by his Honour in the second half of February 1998. A timetable was agreed upon which provided for the filing of affidavits. No order for discovery was made. At this stage Mr Hollier was not represented. At 3.20 pm on Christmas Eve Mr Malcolm Langford of the firm Lewis Hutchinson telephoned Mr Mark Fitzpatrick of Minter Ellison, solicitors for the Authority, requesting discovery. Although Messrs Lewis Hutchinson did not appear on the record as Mr Hollier's solicitors until 16 July 1998, they seem to have been at least advising him in relation to this litigation from December onwards. Mr Fitzpatrick asked Mr Langford to provide Minter Ellison with a written request for inspection of documents. Mr Langford said that he would do so by fax. However Mr Langford did not forward such a fax until almost a month later, on 22 January 1998. That fax sought extensive categories of documents. On the same day Minter Ellison replied by fax to Lewis Hutchinson asserting that the request was oppressive and unreasonable and suggesting that the latter await receipt of further affidavits which were expected within a few days before making a "sensible request". There followed further correspondence between the solicitors about discovery. On 9 February Mr Hollier himself filed a notice of discovery seeking the same items as referred to in Lewis Hutchinson's letter. Minter Ellison on 11 February advised Mr Hollier that they were prepared to give limited discovery and the material would be available on 16 February. On 13 February Minter Ellison sent a further fax confirming that documents which they regarded as relevant would be available. Mr Hollier inspected those documents on the 16th. On 19 February there was a directions hearing before a Registrar of the Court and the Authority was directed to provide "all remotely relevant" documents to Mr Hollier by 23 February. In the meantime the trial had been fixed before Sundberg J to commence on Monday 23 February. On Friday 20 February Minter Ellison sent a fax to the Federal Court confirming that they had made arrangements for Mr Hollier to inspect eight Authority files in their possession at their offices over the weekend and that they were in the process of obtaining further files, but these were stored off site and could only be delivered on the Monday morning. On the Saturday, over a period of six hours, Mr Hollier inspected the documents then in Minter Ellison's possession. In an affidavit sworn on the Monday in support of a notice of motion for an adjournment Mr Hollier deposed that there had not been time available for him to order the material, prepare exhibits and brief counsel and that an adjournment would allow the ordering and preparation of material and briefing counsel. The affidavit went on to deal with a large number of other irrelevant and unsubstantiated complaints such as for example that "a self interest group of ecologists within the public service and ecological interest organisations are acting in concert". On Monday 23 February the matter came on for trial before Sundberg J. Mr Hollier said that he had spent all day Saturday looking at the material and had very little time to organize and prepare it. He mentioned the possibility of obtaining counsel to appear pro bono. There was discussion of possible adjournment to 10 March. His Honour said that if the matter could not be heard then, the next available date was in July. Mr Hollier was asked would he be able to appear with a barrister if the matter were adjourned to 10 March. He said "I believe that to be the case, yes". At this stage Mr W C R Bale QC Solicitor General for the State of Tasmania (the second respondent) suggested that the matter be stood over until the afternoon or the following day so that it could be firmly established whether or not counsel would be available for 10 March. His Honour agreed to that course. On the following day, Tuesday 24th, Mr Hollier tendered a letter from Lewis Hutchinson to himself which stated: "We note that you have requested us to approach counsel regarding representation for the following alternative dates, 24 February to 26 February 1998, 10 March to 13 March, 1998 or a date(s) to be confirmed in July 1998. We confirm that we contacted counsel, Lachlan Carter, on 23 February 1998. He confirmed he is available to appear in this matter in July 1998." Obviously enough this letter was no confirmation that any counsel could appear on 10 March. Mr Hollier accepted that and his Honour said that the matter would now proceed. Mr Hollier said that it was a "vast job" to try and prepare the material. His Honour said that he would entertain an application for Mr Hollier to put in an additional affidavit but as the matter stood at present he was dealing with the case on the affidavit material that had been filed. The matter then proceeded with the cross examination of Mr Hollier which extended for the rest of that day and the following day. Affidavits were tendered by the Authority from, amongst others, Messrs Oxley and Banks. Mr Hollier cross-examined them briefly. On the 26th Mr Hollier tendered a bundle of documents. He identified them. His Honour pointed out that that was not the stage for giving a lengthy description or arguing as to the contents of the documents. In any event, it is clear from the transcript that Mr Hollier by this stage understood the nature of the documents he wished to tender. These were the documents which were produced from the bundle of documents originally produced by the solicitors for the Authority. After counsel for the Authority and Mr Bale had made final submissions Mr Hollier addressed his Honour. The matter concluded at 3.31 pm on 26 February. His Honour delivered a reserved judgment on 6 March. The short answer to Mr Hollier's complaints as to the failure of his Honour to grant an adjournment is that, notwithstanding the invitation by this Court to his counsel on the appeal to identify any document which Mr Hollier was unable to rely on because of his lack of time to search through the bundle, no such document was identified. Copies of the documents have been in the possession of Mr Hollier since February. If there was a document which he had subsequently located which was important, but which he did not find at the trial because of inadequate time, then it would be expected that it would have been produced at the forefront of his argument on the appeal. The position therefore is that even if there was an appellable error in his Honour's exercise of discretion to refuse the adjournment, and we do not think there was, the substantive judgment could not be upset. The only remedy could be a new trial and it would be pointless having a new trial if it were not shown that there was any new evidence which would materially affect the result. The position is analogous to that which obtains when an appellate court finds that evidence was either wrongly admitted or wrongly rejected, but that the evidence in question would not have affected the result: Paterson v Paterson (1953) 89 CLR 212 at 225. We should add that before the trial concluded Mr Hollier was quite content with the practical course adopted by his Honour in relation to the documents. Shortly prior to adjournment at the end of the hearing on Wednesday 25 February his Honour said: "The course I suggest is this: Mr Hollier you've been through about half of the pile of documents. If you go through the balance this evening, that's the rest of this afternoon and tonight." Mr Hollier said "Yes." After some further comments by his Honour Mr Hollier said: "The general process I'm quite happy with. Could I just ask to – the way I'm actually doing this is that I'm just – in this first parcel I've only made them into actual documents, I haven't even sorted them out. There's a huge number here. I think if I could continue this process and working with only a few hours left – and then if it would be possible to meet with Mr Beach at an earlier hour, like an hour before the court starts or something like that, I can go through that process – or two hours." Mr Beach (counsel for the Authority) said: "I'm happy to make arrangements to have my instructor and myself meet with Mr Hollier at 8.00 or 8.30 tomorrow morning. Does that suit you, Mr Hollier?" Mr Hollier: "Whichever time suits you." Mr Beach: "My instructor can give Mr Hollier the address of my Chambers and we can do it there." His Honour: "You might be able to help with any photocopying that might be necessary." Mr Beach: "Yes." His Honour: "The overall intention is to – you will understand that the relevance of the documents must be tested according to the application, in effect the pleadings, and anything you can do to sort them into piles so that I don't need to wade through the whole lot myself in order to arbitrate upon any disputes, but only upon those that really do give rise to some problem. Because tomorrow is our last day and I'd like to sort out this discovery business as soon as possible so that the balance of the day can be devoted to addresses." Another aspect of Mr Hollier's present complaint that he did not have adequate time to inspect the documents is that he says he should have been able to inspect them before he was cross-examined. Again the answer to this is that, notwithstanding the months that have passed, there is no indication of any particular documents which would have provided any assistance to him in answering the cross-examiner's questions. In relation to the adjournment itself we think it was well within the bounds of discretion of a trial judge, dealing with a case of some urgency, to refuse the adjournment sought. The original directions for the conduct of the hearing did not provide for discovery. Mr Hollier and his advisors did subsequently seek discovery, but in a somewhat lethargic way. The Authority by and large co-operated reasonably in providing documents. While no doubt the course proceedings took would have imposed burdens on Mr Hollier, our overall impression is that he and counsel and his Honour were able to have the trial proceed in a satisfactory way. The alternative would be to adjourn the trial for a substantial period of time in a context where Mr Hollier had obtained the substantial benefit of the Authority's undertaking, and where the February trial date had already been fixed at the first directions hearing in December. It often (one is tempted to say almost invariably) happens in litigation that substantial quantities of newly discovered documents emerge shortly prior to trial or in the course of the trial itself. This can impose burdens on the parties, solicitors and counsel, and the trial judge. The trial judge has to give directions which deal with these problems in a practical way. But it is only in very exceptional circumstances that there should be a vacation of the trial date. Modern case management requires that as a matter of fair and efficient conduct of litigation for all litigants, that is not only those in the case in question, the date fixed for trial has to be a lodestar on which all can rely and with which all must comply. The second procedural complaint, that as to the lack of advice or assistance, centred around the lack of cross-examination of Messrs Banks and Oxley. But his Honour made it clear in his judgment that he did not rely on any Browne v Dunn (1893) 6 R 67 inference against Mr Hollier. Moreover it would have been perfectly obvious to Mr Hollier, he having been cross-examined himself for two days, that cross-examination was a procedure available in this proceeding. Also, he was asked specifically whether he wanted to ask Mr Banks or Mr Oxley any questions about their affidavit, and he proceeded to do so. The substantive ground His Honour reviewed the evidence in considerable detail. In essence his Honour concluded, first, that the alleged representations by Messrs Banks and Oxley were inherently unlikely, given the overall policy of the Authority. Secondly, in extensive correspondence after 1992 between Mr Hollier and the Authority and between him and the Tasmanian Government instrumentalities who were likely to take over the island he made no suggestion of the promise now alleged to have been made to him. Thirdly, his Honour, having viewed Mr Hollier, found him an unsatisfactory witness. His Honour said: "This contributed to my preference for Mr Banks' and Mr Oxley's evidence over that of Mr Hollier. He was evasive in his answers to questions. He delivered long speeches instead of answering simple questions. When he could see where certain questions were leading, he would answer non-responsively. At times he would tell counsel that he knew where a line of questioning was leading. At other times he simply assumed that a question was a trap, and declined to answer it, responding instead with a speech about some other aspect of the case." His Honour then proceeded to give three specific examples which amply bear out those observations. His Honour's conclusion was that Mr Hollier was "a man of considerable intelligence". He had not in his Honour's views given intentionally false evidence but was "an enthusiastic and hyperactive man, terribly wrapped up in, and almost consumed by, his activities on and connected with the Island." His Honour said: "I have come to the conclusion that this enthusiasm led him over the course of time to view as a promise what had been held out to him as no more than an opportunity to bid for a long-term lease at a future date." The detailed examination of the evidence which was afforded us by counsel for the appellants only tended to confirm the conclusion that his Honour reached. Indeed there was abundant evidence not mentioned by his Honour. For example in a letter dated 15 April 1994 to the Tasmanian National Parks and Wildlife Authority, Mr Hollier wrote amongst other things: "I anticipate the sale of the Deal Island Lightstation preceding [sic] to completion by the 30th June when the new owner could notify us that we can continue to caretaking and occupancy of Deal Island Lightstation pending completion of longer term arrangements." Even more convincingly, on 8 May 1996 Mr Hollier wrote to the Federal Minister for Transport speaking of his existing arrangement and saying: "This agreement was made as a temporary measure four years ago in the expectation that a permanent long term agreement would be established within twelve months when the sale or transfer of the conservation zoned island to another government agency was completed. Consequently the agreement, which is for an indefinite period of time but can be cancelled on one month's notice, by having no security of tenure effectively prohibits capital investment in the development of facilities and the Institute." All this is totally inconsistent with the case that was put before his Honour. This was not only a case where the trial judge had the opportunity to observe the demeanour of witnesses, an advantage which an appeal court does not share: see Abalos v Australian Postal Commission (1988) 171 CLR 167 at 178-179. There were also the factors of the inherent improbability of his version and his subsequent conduct inconsistent with his version. The application of these three time-honoured techniques of judicial fact finding, each independent of the others, buttressed his Honour's conclusion. After the hearing of the appeal concluded the solicitors for the appellants contacted the Court and asked that they be heard on the question of costs. Prima facie of course costs should follow the event. However the appellants will have leave to file and serve written submissions within seven days. The respondents should file and serve submissions within seven days thereafter. I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Whitlam and North. Associate: Dated: 24 July 1998 Counsel for the Appellants: Mr L Carter Solicitor for the Appellants: Lewis Hutchinson Counsel for the first Respondent: Mr J Beach and Mr D Star Solicitors for the first Respondent: Minter Ellison Counsel for the second Respondent: W C R Bale QC S-G Solicitors for the second Respondent: Director of Public Prosecutions Counsel for the third Respondent: Ms W Harris Solicitors for the third Respondent: Australian Government Solicitor Date of Hearing: 22 July 1998 Date of Judgment: 24 July 1998