Before: R P G Haines QC (Chairperson), C M Treadwell (Member)

Counsel for the Appellant: G M Monk

Appearing for the NZIS: No appearance

Date of Hearing: 25 January 2000

Date of Minute: 25 January 2000



[1] This is an application for an adjournment.

[2] The appellant is a 43 year old man who arrived in New Zealand on 6 October 1999. At Auckland International Airport he claimed refugee status on the grounds that he is an Indian national in fear of persecution at the hands of the authorities in the Punjab. After being taken into custody under s 128 of the Immigration Act 1987 (as amended by the Immigration Amendment Act 1999, s 37), he was detained at Mt Eden Prison.

[3] By letter dated 15 October 1999 his current solicitors, Vallant Hooker & Partners, advised the Immigration Service that they had been instructed in the matter of his refugee claim. A copy of the Immigration Service file was provided to that firm on 19 October 1999.

[4] On or about 28 October 1999 the appellant, together with approximately 16 other refugee claimants who were at that time also detained at Mt Eden Prison, commenced a hunger strike. When the appellant was spoken to by a refugee status officer on 30 October 1999 in connection with his refugee claim he declined to be interviewed on the grounds that he had not eaten for three days, was weak and could not speak properly. A further attempt to interview him on 1 November 1999 failed for much the same reasons. On 2 November 1999 the refugee status officer declined the refugee application on the grounds that as the appellant was unwilling to be interviewed, no determination could be made that he was a refugee within the meaning of Article 1A(2) of the Refugee Convention.

[5] By letter dated 9 November 1999 from Vallant Hooker & Partners an appeal was lodged with this Authority.

[6] By letter dated 15 November 1999 the Authority gave notice that the appeal had been set down for hearing on 2 December 1999.

[7] On 10 November 1999 and the days which followed, the Authority began to hear appeals by other hunger strikers. Mr Monk appeared at all these hearings and on each occasion sought an adjournment on the grounds that the particular appellant was, by reason of the hunger strike, medically unfit to present his case. In each instance, an adjournment was granted but a further date fixed. When that further date came round, a further adjournment application was presented on identical grounds.

[8] By the end of November 1999 it was abundantly clear that unless and until the hunger strikers abandoned their fast, each and every of them would be seeking an adjournment of their respective appeals on medical grounds.

[9] It should be noted that in most, if not all of these cases no steps had been taken to prepare the appeal for hearing and we are told that the present case is no exception.

[10] On 1 December 1999 the hunger strikers were released on bail by the District Court at Otahuhu. One of the terms of release was that they pursue their refugee claims with due diligence. Following a scheduling conference, the Authority on 3 December 1999 issued a Minute allocating further dates of hearing for each of the appeals lodged by the men, this particular appellant being initially allocated the dates of 24 and 25 January 2000. Following further submissions by Mr Monk the schedule was amended and the hearing date for this present appeal was fixed for 25 January 2000.

[12] A copy of the revised schedule was sent to Mr Monk by facsimile on 6 December 1999. The timetable set ensures that all the appeals will be heard in the period January to mid March 2000.

[13] The hearing date for this present appeal having been set well in advance, the Authority was entitled to expect that the appellant's evidence and submissions would be filed with the Authority at least three working days before the hearing, as required by Practice Note 2/99 (1 October 1999) para 12.1. No such documents were filed. Instead, on the afternoon of the day preceding the appeal (i.e. on 24 January 2000) the Authority received a facsimile from Vallant Hooker & Partners advising that the appellant would be seeking an adjournment. At the commencement of the hearing on 25 January 2000 counsel was heard in support of the application.


[14] Two grounds were advanced in support of the adjournment application:

1.   The primary reason is that Mr Monk has had insufficient time to brief his client's evidence, to prepare a statement and to draft supporting submissions. He first saw the appellant on 20 January 2000 and while able to take instructions from him, further preparation was required. In particular, the appellant was referred to a medical practitioner, whom he saw yesterday, 24 January 2000. Issues arising from this report have yet to be discussed with the appellant. The lack of time was the result of Mr Monk's commitments to the other members of the hunger strike group.

2.   The Court of Appeal will hear the Crown appeal against the decision of Fisher J in Eiji v Attorney General (High Court, Auckland, M 1884-SW/99, 29 November 1999) on 8 February 2000. Mr Monk is assisting in the preparation of the respondents' submissions on one aspect of that appeal.

[15] Other points made were that this was the first occasion on which the appellant had sought an adjournment, that he had the right to counsel of his choice and that the workload difficulties experienced by Mr Monk had been contributed to by the Authority's actions in setting a tight time frame for the hearing of the hunger strike cases.

[16] The two grounds on which the adjournment application are advanced are in fact one, namely that Mr Monk, and behind him, Vallant Hooker & Partners, are overburdened with the work entailed in representing the 17 refugee claimants in question.


Whether counsel's other commitments a ground for adjournment

[17] The law is clear. Adjournments should not be granted because counsel instructed has other commitments. It is equally clear that while any person is entitled to the counsel of his or her choice, that "entitlement" is subject to counsel being available. If the counsel of first choice is not available, another counsel must be instructed, unless there are exceptional circumstances. These principles are set out clearly in Chef and Brewer Bar and Café Limited v Police [1994] NZAR 428, 431 (Tompkins J):

"It has now been recognised generally in the administration of the Courts that, save in exceptional circumstances, adjournments should not be granted because counsel instructed have other Court commitments. This is a fundamental principle of effective case management and has in fact been practised in this Court, in the District Court and I believe before tribunals for some considerable time. It was the subject of an announcement by the Chief Justice published in Law Talk on 20 July 1992.

In the present case there is no evidence of any steps having been taken to instruct alternative counsel. Indeed, there is no affidavit from any officer of the applicant giving any reason why another counsel could not have been instructed. The plaintiff was aware on 26 May of the fixture for the hearing of its application and the application by the police. There have been no reasons advanced why another counsel could not have been instructed save Mr Wyles' contention that the applicant is entitled to the counsel of its choice. Any person is entitled to the counsel of his or her choice, provided that counsel is available. But if the counsel of first choice is not available, another counsel must be instructed, unless there are exceptional circumstances. There is nothing exceptional about the circumstances in this case."

[18] To similar effect see R v Kay (1992) 9 CRNZ 464 where the adjournment application was based on the fact that counsel's father had died a few days before the trial date and counsel had been unable to adequately prepare the case. Thomas J at 469 stated:

"The bereavement which Mr Hesketh suffered was sad and I have every sympathy for him in his time of grief. But counsel with professional obligations must be prepared to act in a way which discharges those obligations. This includes, where necessary, returning briefs. In this case, Mr Hesketh should either have returned this brief as soon as it became apparent that he would be in difficulties in preparing the case, or, certainly, after the very clear direction to that effect given by Smellie J last Tuesday. Similarly, Mr Collis, as the instructing solicitor, heard Smellie J's specific reference to his responsibility to obtain alternative representation for Mr Day. At that time alternative representation could realistically have been achieved. Another counsel of recognised competence could have been retained on the Tuesday afternoon or the Wednesday morning and would have been in a position to take the case today. In the circumstances of this case, and having regard to the detriment of the complainant, the notion that Mr Day had the right to counsel of his choice could not arise. It had to be accepted that the counsel of his choice, that is, Mr Hesketh, was not available by virtue of his father's bereavement.

Tragic events, such as the death of a spouse or parent of a counsel will inevitably occur from time to time. Although a trying time for the counsel concerned, he or she must do their best to ensure that arrangements are made to avoid disruption to the Court, hardship to the complainant, and inconvenience to other persons. I have no doubt that responsible counsel will make that effort, and I do not doubt that Mr Hesketh has endeavoured to do so in this case."

[19] Useful reference might also be made to the Rules of Professional Conduct for Barristers and Solicitors 5th ed, Rule 1.02 which provides:

"A practitioner as a professional person must be available to the public and must not, without good cause, refuse to accept instructions for services within the practitioner's fields of practice from any particular client or prospective client."

The Commentary to this rule relevantly notes:

"(1) It would be improper for a practitioner to accept instructions unless the matter could be handled promptly with due competence and without undue interference by the pressure of other work or other obligations. Instructions for work which is outside the field of competence of a practitioner should be either declined, or, with the consent of the client, referred to another practitioner.

(2) ...

(3) Where the commitments of a practitioner would not allow sufficient time to be devoted to the matter, those commitments would be good cause for refusing to act." [emphasis added]

[20] These principles and the cases cited have already been adopted by the Authority in Refugee Appeal No. 7002/96 Re BS (7 May 1996) and in the Minute published in Refugee Appeal No. 2606/96 Re MS (22 May 1996).

Whether there are exceptional circumstances

[21] Mr Monk made the point that refugee law is a specialised area of practice. From this submission the Authority drew the inference that it was claimed there were exceptional circumstances for the present appellant's refugee claim to be retained by Vallant Hooker & Partners. The short answer to this submission is that there are in Auckland a number of able barristers sole who are well qualified to represent refugee claimants, just as there are a number of solicitors in Auckland who are equally well qualified and experienced in refugee law. They could either be briefed as counsel or retained directly by the appellant. In answer to a question from the Authority, Mr Monk conceded that no thought had been given to briefing out this current appeal in order to relieve the workload problem. An approach to one counsel to do one or two cases scheduled for hearing earlier this year had come to nothing and no other counsel had been approached.

[22] The second point made was that as Mr Monk had seen the appellant on 20 January 2000 to begin drafting a statement, it would be inappropriate for other counsel to be briefed. This, however, is not a special circumstance. It is commonplace for more than one person to be involved in preparing briefs of evidence and for cases to be handed to others in mid-preparation. No exceptional circumstances have been established.

Whether appellant has previously sought an adjournment

[23] As to the submission that this adjournment application is the appellant's first such application, a degree of reality must be allowed to intrude. The appeal was first set down for hearing on 2 December 1999. The reason why it did not proceed on that date was because the appellant's hunger strike disabled him from participating in the hearing. In addition, after lodging the appeal the appellant took no steps whatever to prepare his case for hearing. The reason why the original date of hearing did not proceed was because the appellant made it impossible for the Authority to conduct a hearing. The fact that no formal application to adjourn was made before the fixture was inevitably vacated is neither here nor there. The short point is that by seeking an adjournment of today's hearing, the appellant has thrown away two valuable sitting days, time which could have been allocated to the hearing and disposal of two other appeals. When to this squandering of resources is added the weeks of sitting time lost by the cumulative actions of this group of hunger strikers, the waste is extravagant. In this context, the principle of effective case management relied on by Tompkins J in Chef and Brewer Bar and Café Limited v Police is particularly relevant. Given the circumstances, it cannot responsibly be said that the Authority has contributed to the workload difficulties of Vallant Hooker & Partners by scheduling this group of appeals in such a way as to ensure that they are heard promptly.

The future

[24] During the course of the adjournment hearing Mr Monk was handed a copy of Chef and Brewer Bar and Café Limited v Police [1994] NZAR 428, Refugee Appeal No. 70002/96 Re BS (7 May 1996), Refugee Appeal No. 2606/96 Re MS (22 May 1996) (Minute) and Rule 1.02 of the Rules of Professional Conduct of Barristers and Solicitors 5th ed. The implications of these decisions were fully discussed.

[25] In clear and explicit terms, the Authority has given notice to Mr Monk that it will not in the future, either in relation to the present group of 17 men, or in relation to any other appellant, accept that pressure of work or unavailability of counsel affords proper grounds for granting an adjournment, save in exceptional circumstances. This means that Vallant Hooker & Partners, if unable to meet their professional commitments, must arrange for the work to be spread more widely and ensure that the cases proceed as scheduled.


[26] The principles of law being clear, the Authority is of the view that no proper grounds have been shown for an adjournment. Against its better judgment, however, it has decided to grant the application for reason only of the fact that the failure by the appellant's solicitors to appreciate their true responsibilities has produced the result that if the adjournment is refused, the appellant's refugee claim could well be prejudiced.

[27] The professional responsibilities of the appellant's solicitors having been spelt out in unmistakable terms, the way is now clear for them to understand that pressure of work or other commitments will not be accepted as grounds for an adjournment, save in exceptional circumstances.

[28] As to the appellant himself, the Authority has addressed him directly and explained the nature of the application being made on his behalf and the Authority's attitude to that application. The Authority has also drawn his attention to the fact that he has now wasted two hearing days. It was pointed out that his choice is to either instruct other solicitors or to ensure that his current solicitors properly prepare his case and ensure that it is in all respects ready for hearing on the new date. His obligation to cooperate with his solicitors in the preparation of his case was stressed, particularly given that he has chosen to live out of Auckland near Tauranga. The Authority also suggested to him that, as Mr Monk had said that only another two hours work was required to complete the appeal statement, upon the hearing being adjourned he and Mr Monk should spend the rest of the day preparing the case.

[29] The decision of the Authority is that the hearing of this appeal is adjourned to Tuesday, 14 March 2000 on the following conditions:

(a) This adjournment is to be a final adjournment.

(b) The appellant's written statement, supporting evidence and submissions are to be filed no later than 5.00pm on 7 March 2000.

[30] Both of the mentioned dates have been agreed to by Mr Monk.

[Rodger Haines QC] Chairperson


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