Right to Legal Representation in Civil Proceedings

Commonwealth v Davis Samuel Pty Ltd [No 3] [2008] ACTSC 76 The ACT Supreme Court has missed an opportunity to consider the meaning of the right to a fair hearing in s 21(1) of the Human Rights Act 2004 (ACT) in the context of an application for adjournment of a civil matter based on reasons including lack of legal representation.


The proceedings related to an action by the Commonwealth to recover moneys illegally taken from it in 1999 and transferred to a number of persons, including companies associated with the Applicants.  The proceedings had been delayed while related criminal trials were conducted.

When the Commonwealth sought to revive the action, Registry staff indicated that a 3-week period from 10 June 2008 was available.  This date was communicated to the active defendants, and the hearing dates were set.

After a series of adjournments a directions hearing was held on 14 March 2008.  All but two defendants (including the Applicants) were represented, and opposed the action being listed on 10 June 2008, arguing chiefly that:

  • the action would take up to 6 to 8 weeks;
  • related civil penalty proceedings in the NSW Supreme Court against some of them had not concluded; and
  • there was not enough time to prepare.

The Commonwealth argued it would be prejudiced by any adjournment, due to:

  • the damage the delay would cause to its reputation; and
  • the cross-claim by defendants claiming $4.3 billion from the Commonwealth, which was a contingent liability and which had constantly to be disclosed.

It also noted that the hearing had been given at least 3 months in advance.

No issues were raised at this directions hearing concerning the defendants’ ability to pay for legal representation.

The application to reschedule the dates was dismissed, and the action was listed for hearing to commence on 10 June 2008 together with an order that any application to vacate the hearing date be filed and served by 25 March 2008.

No such application was made until 16 May 2008, when the Applicants made an application for vacation of the hearing date, citing the reasons including the following:

  • the Applicants’ original solicitor had retired;
  • no funds were available to the Applicants to engage other solicitors or experienced counsel at that time, but they ‘expect[ed] to have sufficient funds by the end of 2008’;
  • the Applicants would not receive a fair hearing without legal representation; and
  • if the Applicants were unable to obtain funding for representation, they would represent themselves, but, if so required, the time available would be too short for them to prepare properly.

The Commonwealth opposed the application.


Justice Refshauge stated that the decision to grant an adjournment is a discretionary, and to succeed, the Applicants must make out their case and provide adequate evidence of the relevant circumstances which include, but are not limited to:

  • the current position of the Applicants;
  • the situation in which they would find themselves if the application for adjournment were refused;
  • reasons why the Applicants were in their present position, and how that came about (especially any responsibility of the Applicants for it); and
  • the position the other parties would be in if the application were granted.

His Honour also noted that his consideration

must have regard to the paramount duty to see that the Applicants are not denied a fair trial nor access to the court as protected by the Human Rights Act 2004 (ACT).

After briefly considering the decision of the European Court of Human Rights in Airey v Ireland (1979) 2 EHRR 305, he concluded:

Thus, I find that the question to be asked in this context is whether the absence of legal representation will effectively abrogate the applicants’ access to a court, which is protected under s 21 of the Human Rights Act 2004 (ACT), though it has been held not to be an absolute right.

After noting the decision to vacate proceedings is ‘a discretionary one and [would] depend on all the circumstances’, he stated:

All this must have regard to the paramount duty to see that the Applicants are not denied a fair trial nor access to the court as protected by the HRA and that, balancing all the relevant considerations, justice is done.

Applying the test, Refshauge J dismissed the application, having regard to the facts that he was not satisfied that:

  • the Applicants were unable to secure appropriate representation;
  • if they could not brief counsel, the Applicants would be denied meaningful and effective access to the court;
  • the Applicants would not be ready,

-- given the Applicants had known since late 2007 that the trial was likely to proceed on 10 June 2008, and also because of the potential prejudice to the Commonwealth and other defendants.

Relevance to the Victorian Charter

Article 21(1) of the Human Rights Act 2004 (ACT) is identical in form to s 24(1) of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic).

Unfortunately, Refshauge J did not give specific consideration to the requirements of the Human Rights Act 2004 (ACT). The content of the right to a fair hearing contains many elements, including, relevantly:

  • equal access to, and equality before, the courts;
  • the right to legal advice and representation; and
  • the right to procedural fairness;

Relevant jurisprudence indicates that access to the justice system should not be prejudiced by reason of a person’s inability to afford the cost of independent advice or legal representation.  While the right to a fair hearing does not impose an obligation on a state to provide free legal assistance in civil matters, it may require the state to make the court system accessible to everyone.  Nevertheless, the complexity of some cases may actually require legal aid to ensure a fair hearing: see, eg, Airey v Ireland [1979] 6289/73 ECHR 3 (9 October 1979).  Further, any failure to provide legal aid to those who may otherwise be unable to access legal representation is likely to contribute to significant inefficiencies and additional costs in the civil justice system.

The facts of this case raised questions as to the meaning of the right to a fair hearing in the context of the ability of a party to a civil proceeding to obtain adequate representation in complex litigation and the powers and discretions of the court in setting hearing and filing dates.  A discussion of whether a deferral of the hearing date in lieu of the provision of legal aid, if only by way of obiter dicta, would have provided useful guidance as to the meaning of s 21(1) of the Human Rights Act 2004 (ACT) and s 24(1) of the Victorian Charter.

The decision is available at http://www.courts.act.gov.au/supreme/judgments/davis_samuel3.htm.

Peter Henley is the coordinator of the Mallesons Stephen Jaques Human Rights Law Group