Australian Competition and Consumer Commission v Bon Levi (No 2) [2008] FCA 788

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Bon Levi (No 2) [2008] FCA 788

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v BON LEVI and CRAIG CLEARY

QUD 155 of 2004

SIOPIS J

28 MAY 2008

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY QUD 155 of 2004

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: BON LEVI

First Respondent

CRAIG CLEARY

Second Respondent

JUDGE: SIOPIS J

DATE OF ORDER: 28 MAY 2008

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The first respondent's notice of motion dated 16 May 2008 is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY QUD 155 of 2004

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: BON LEVI

First Respondent

CRAIG CLEARY

Second Respondent

JUDGE: SIOPIS J

DATE: 28 MAY 2008

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application to adjourn the trial of a charge of contempt of court brought by the applicant against the first respondent (Mr Levi). The trial is due to commence on 10 June 2008. 2 On 28 February 2005, Kiefel J made orders restraining Mr Levi from certain conduct in respect of advertising or promoting certain business "opportunities" except on certain terms. 3 On 13 June 2007, the applicant filed a notice of motion and a statement of charge, alleging repeated breaches of the orders of Kiefel J. In support of its notice of motion, the applicant also filed affidavits from complainants who allege that, in breach of the orders of Kiefel J, Mr Levi induced them to pay monies to him in connection with various "business opportunities" promoted by Mr Levi. 4 On 30 October 2007, Mr Levi filed a notice of motion to stay the contempt proceeding on the grounds that he was indigent and through no fault of his own was unable to obtain legal representation for the trial. On 14 February 2008, I dismissed the first respondent's notice of motion to stay the proceeding on the basis that Mr Levi had not established that he was indigent (Australian Competition and Consumer Commission v Bon Levi [2008] FCA 68). 5 On 20 February 2008, the applicant filed an amended statement of charge which added an additional allegation of a breach of the orders of Kiefel J. 6 On 11 March 2008, there was a directions hearing at which Mr Levi represented himself. At that directions hearing the question of the proposed trial date was discussed. The period referred to was some time between the middle of May and June 2008. Mr Levi stated that he preferred June. He also said that he would try and obtain legal representation. I also stated that by reason of the findings that I had made in dismissing Mr Levi's application to stay the proceeding, it would be necessary for another judge to hear the trial. 7 On 12 March 2008, Mr Levi sent a facsimile transmission to Mr Laurie Levy, who practices as a counsel, advising that the date of the trial was likely to be May or early June 2008. Mr Levi also told Mr Levy that he was now in a position to pay his legal fees privately. Mr Levy advised Mr Levi that he would be prepared to act as a counsel and that Mr Levi should contact Mr Nigam to instruct him. 8 On 8 April 2008, the Court sent a letter to the address for service of Mr Levi advising that the hearing had been set for four days commencing on 10 June 2008 before Greenwood J. 9 On 12 April 2008, Mr Levi engaged SC Nigam & Co to act for him. SC Nigam & Co did not advise the Court or the applicant of that appointment for more than three weeks. 10 On 1 May 2008, the solicitor for the applicant wrote to Mr Levi at his address for service confirming the hearing date. 11 On 5 May 2008, SC Nigam & Co filed a notice of appearance. 12 On 6 May 2008, the applicant's solicitor wrote to SC Nigam & Co enclosing a copy of the letter referred to in [10] above. On the same date, the applicant's solicitor advised Mr Levi's solicitors that Mr Levy had acted for one of the applicant's witnesses and may, therefore, have a conflict. 13 On 7 May 2008, there was a further directions hearing before me. Mr Nigam made an oral application for the adjournment of the trial. I advised Mr Nigam that I would not entertain such an application in the absence of affidavit material. 14 On 16 May 2008, SC Nigam & Co filed a notice of motion for an adjournment and the supporting affidavits. There was an affidavit from each of Mr Nigam, Mr Levy and Mr Levi. Each of Mr Levy and Mr Nigam deposed that he would be unavailable for the trial on 10 June 2008. Mr Levy deposed that he would not be available until November 2008. Mr Nigam deposed that he was engaged by Mr Levi on 12 April 2008 to act on his behalf in this matter. He said that when Mr Levi engaged him, Mr Levi did not advise him that the matter had already been set down for hearing. On 23 May 2008, Mr Levi filed a further affidavit made by Mr Nigam to the effect that Mr Levy had told Mr Nigam that he had a "potential conflict" and thus could not act for Mr Levi. These are the affidavits relied upon by Mr Levi in support of his application for an adjournment. 15 Whether an adjournment is granted is a matter of discretion. In exercising that discretion the Court will take into account the circumstances giving rise to the application for the adjournment and the prejudice that may be suffered. The Court will exercise its discretion in the interests of justice. 16 In this case, the major ground relied upon by Mr Levi is that counsel of his choice will be unavailable. Whilst it is the case that the Court will try to facilitate a party being represented by counsel of his or her choice, particularly in a quasi‑criminal case such as this, there is no absolute right to be represented by counsel of one's choice. (See, R v Williams (2007) 16 VR 168 (R v Williams).) In considering whether to grant an adjournment on the basis of the unavailability of counsel, the Court takes into account in exercising the discretion, whether the non‑availability of counsel arises from any fault on the part of the applicant for the adjournment, any history of delay, any prejudice and the public interest. 17 For the following reasons, I infer that making an adjournment application on the grounds that his lawyers are unavailable on the trial dates, is part of Mr Levi's strategy to delay for as long as possible the commencement of his trial. 18 First, having in March procured Mr Levy's consent to act as counsel, Mr Levi did not advise the Court until 7 May 2008 that Mr Levy was unavailable to represent Mr Levi at a trial during June 2008 ‑ being the month which Mr Levi indicated at the directions hearing, was his preference. 19 Secondly, Mr Levi took no steps to give effect to Mr Levy's instructions to engage Mr Nigam until 12 April 2008. 20 Thirdly, when Mr Levi engaged Mr Nigam he did not advise Mr Nigam that the trial date was set for 10 June 2008. 21 Fourthly, no application for an adjournment of the trial supported by affidavits was made until 16 May 2008. 22 The inference that the application is made as part of a strategy to delay the commencement of the trial, is reinforced by the fact that Mr Levi has previously sought to delay the trial by bringing an application to stay the proceeding on the ground that he was indigent ‑ being an assertion which I rejected, and which is undermined by the fact that Mr Levi is now represented by counsel. 23 The observations of King J in R v Williams at 180, at [70] are apposite: Whilst the court can and will do all they can to accommodate counsel of choice for accused persons, it cannot be that they are entitled to select a counsel who will not be available for a lengthy period and thereby compel the court to adjourn matters that are capable of being heard. 24 I note that Mr Levy has very recently advised Mr Nigam that he is not able to represent Mr Levi because he has a conflict of interest. However, this does not affect the findings I have made in relation to Mr Levi's strategy of delay. 25 As to the question of prejudice to Mr Levi, there are assertions made by Mr Levy and Mr Nigam that the matter is complex. Further, Mr Nigam has deposed that Mr Levi has provided him with more than 1000 documents. There is no evidence from Mr Nigam as to the extent of the work which he has already done in preparing Mr Levi's defence, nor whether any of the documents Mr Levi delivered to him are relevant to the defence. Mr MacMillan, who appeared for Mr Levi, did advise from the Bar table that little preparation had been undertaken. 26 The matter is not self‑evidently complex. The charge against Mr Levi relates to six incidents where Mr Levi is alleged to have acted in breach of the orders of Kiefel J by taking money from persons in connection with the sale of "business opportunities" without disclosing that the Court had, at the instance of the applicant, made orders against him. There is no evidence that it would not be possible for new counsel to get the matter up before 10 June 2008. 27 To the extent that there is any prejudice in the sense that Mr Levi may have to spend a more intensive period with his lawyers in preparing the case, that is as a consequence of him engaging lawyers who were unavailable to represent him on the trial dates and who apparently have, presumably with his acquiescence, not undertaken much, if any, work in preparing his defence. In short, there may be some inconvenience to Mr Levi in engaging different lawyers to get the matter up for trial, but if so, that is his own making. 28 Mr MacMillan also submitted that substantial portions of the complainants' affidavits were irrelevant. He said that arguments about the admissibility of these parts of the affidavits would take up Court time at the trial. Further, he said that correspondence with the applicant's solicitor indicated that if Mr Levi did wish to rely upon an affidavit at the trial, that affidavit should be read after the applicant's evidence and that the applicant may then apply for the trial to be "stood over" for a short time so that the applicant's counsel could prepare cross‑examination. Mr MacMillan contended that these factors indicated that there was a risk that four days would not be enough time for the trial. 29 Mr MacMillan also contended that the preparation of Mr Levi's defence would be more burdensome if Mr Levi had to prepare to deal at trial with the "irrelevant" matters in the affidavits. Accordingly, Mr MacMillan submitted that the trial should be adjourned in order that the admissibility of the affidavits be determined before trial. 30 In my view, the fact that there may be objections to the admissibility of parts of the affidavits on the grounds of relevance is not a sufficient basis on which to adjourn the trial. The question of the admissibility of those parts of the affidavits can be dealt with by the trial judge at the trial. It is common for questions of admissibility to be dealt with during a trial. I will make directions for the filing of objections to the affidavits so as to facilitate that process. Further, to the extent that deferring the question of the admissibility of parts of the evidence to the trial increases the burden of preparing Mr Levi's defence, my comments in [27] above apply. 31 As to the question of whether four days is a sufficient time for the trial, the matters raised by Mr MacMillan amount to no more than speculation and do not constitute a sufficient basis upon which to adjourn the trial. 32 There is a strong public interest element to this case. The orders of Kiefel J preclude Mr Levi from being involved in the sale of partnerships or franchises except on conditions. The applicant has produced evidence that franchises or partnerships in the Bikini Girls massage business are still being advertised. One of the charges made against Mr Levi is that he is in breach of the orders of Kiefel J by being involved in the sale of the Bikini Girls massage business partnership. Mr MacMillan submitted that this public interest consideration could be neutralised by Mr Levi giving an undertaking. However, Mr MacMillan said that he was not in a position to formulate the undertaking. In my view, in all the circumstances, little weight can be based upon the willingness of Mr Levi to give an undertaking. 33 Accordingly, I dismiss Mr Levi's application to adjourn the trial. I will hear the parties on the question of costs. I certify that the preceding thirty‑three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.