- [2-0200] Court’s power of adjournment
- [2-0210] General principles
- [2-0220] Short adjournments
- [2-0230] Unavailability of party or witness
- [2-0240] Legal aid appeals
- [2-0250] Consent adjournments
- [2-0260] Apprehended change in legislation
- [2-0265] Pending appeal in other litigation
- [2-0270] Failure to comply with directions
- [2-0280] Concurrent civil and criminal proceedings
- [2-0290] Felonious tort rule
- [2-0300] Judge’s control of trial
- [2-0310] Costs
- [2-0320] Adjournment only to “specified day”
- [2-0330] Procedure
- [2-0340] Sample orders
The court has both an inherent power: Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 252; and a specific statutory power under s 66 of the CPA, to adjourn the hearing of any matter in appropriate circumstances.
This power must be exercised in accordance with the overriding purpose of the CPA and the UCPR of facilitating the just, quick and cheap resolution of the real issues in the proceedings (CPA s 56(1)); and in accordance with the dictates of justice: s 58 of the CPA.
In determining whether an adjournment should be granted, the court is not confined to applying the general traditional view that regard is only to be had to the interests of the litigants in the particular case, but should also take into account the effect of an adjournment on court resources; the competing claims of litigants in other cases awaiting hearing in the particular list; the working of the listing system of the particular court or list; and the importance in the proper working of that system of adherence to dates fixed for hearing.
In Sali v SPC Ltd (1993) 67 ALJR 841, the majority of the High Court observed (at 843–844):
In Maxwell v Keun, [ 1 KB 645] English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action. However, both propositions were formulated when court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become.
In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources, the competing claims by litigants in other cases awaiting hearing in the court as well as interests of other 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.
A similar approach was expressed by Gleeson CJ in State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1992) 29 NSWLR 487 at 493–494:
The courts of this State are overloaded with business, and their workload has, over a number of years, increased at a greater rate than any increase in the resources made available to them. The inevitable consequence has been delay. This, in turn, has brought an ever increasing responsibility on the part of the judges to have regard, in controlling their lists and the cases that come before them, to the interests of the community, and of litigants in cases awaiting hearing, and not merely to the concerns of the parties in the instant case. The days have gone when courts will automatically grant an adjournment of a case simply because both parties consent to that course, or when a decision to grant or refuse an adjournment sought by one party is made solely by reference to the question whether the other party can adequately be compensated in costs.
See also the views of Toohey and Gaudron JJ in Sali v SPC Ltd at 849 above; GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 716.
In State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154 Dawson, Gaudron and McHugh JJ said:
Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
However in Dennis v Australian Broadcasting Corporation  NSWCA 37 Spigelman CJ, with whom Basten and Campbell JJA agreed, observed that, while State of Queensland v J L Holdings Pty Ltd remained binding authority with respect to applicable common law principles, those principles could be and had been modified by statute both directly and via statutory authority for rules of court: .
The Chief Justice said at :
In this State J L Holdings must now be understood as operating subject to the statutory duty imposed upon the courts by s 56(2) of the Civil Procedure Act 2005, which requires the Court in mandatory terms — “must seek” — to give effect to the overriding purpose — to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” — when exercising any power under the Act or Rules. That duty constitutes a significant qualification of the power to grant leave to amend a pleading under s 64 of the Civil Procedure Act.
The duty referred to applies to the exercise of the power of adjournment.
Subsequent to Dennis the High Court held that the statement from J L Holdings set out above is not authoritative and is not to be followed: Aon Risk Services Australia v Australian National University (2009) 239 CLR 175 French CJ at ; Gummow, Hayne, Crennan, Kiefel and Bell JJ at ; Heydon J at .
The statements in Sali v SPC Ltd and Frugtniet v State Bank of New South Wales  NSWCA 458 that it is only in extraordinary circumstances that an adjournment will be refused where the practical effect of the refusal will be to terminate proceedings adversely to the applicant for adjournment are qualified by the above referred to changes. For an example of the refusal of an adjournment on case management principles see Szczygiel v Peeku Holdings Pty Ltd  NSWSC 73 and see Hans Pet Construction v Cassar  NSWCA 230.
Matters which may justify an adjournment include that the applicant is taken by surprise: Collier Garland (Properties) Pty Ltd v Northern Transport Co Pty Ltd [1964–5] NSWR 1414; Biro v Lloyd [1964–5] NSWR 1059 at 1062; and insufficient time to deal with affidavit material: Scott v Handley (1999) 58 ALD 373. See also Kelly v Westpac Banking Corporation  NSWCA 348.
A short adjournment, for example, for a matter of hours or until the following day, should normally be allowed: Carryer v Kelly  2 NSWR 769; Petrovic v Taara Formwork (Canberra) Pty Ltd (1982) 62 FLR 451.
That a party or a material witness is unavailable will usually be a sufficient ground for an adjournment, provided such unavailability is not the fault of the party whose interests will be prejudiced by the refusal of the adjournment or of his or her solicitor: Walker v Walker  1 WLR 327; Vasiljev v Public Trustee  2 NSWLR 497; Petrovic v Taara Form Work (Canberra) Pty Ltd (1982) 62 FLR 451. Cf Bloch v Bloch (1981) 180 CLR 390.
In Ellis v Marshall  NSWSC 89, Campbell J, refused a plaintiff’s application to vacate a hearing date, where after the date was fixed, but before being notified, she had booked an overseas holiday, referred to ss 56 and 57 of the CPA.
Where an applicant for legal aid is dissatisfied with the determination of such application and has appealed or intends to appeal, s 57 of the Legal Aid Commission Act 1979 applies. Section 57 provides:
Where it appears to a court or tribunal, on any information before it:
that a party to any proceedings before the court or tribunal:
has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or
intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,
that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and
that there are no special circumstances that prevent it from doing so,
the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.
See generally Friends of the Glenreagh Dorrigo Line Inc v Jones (unrep, 30/3/94, NSWCA).
The fact that both parties consent to the adjournment is not decisive and does not mean that it must be granted: Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246. It is for the court, not the parties, to decide whether the case should be adjourned.
It is not proper to grant an adjournment because of an apprehended change in legislation, even if such apprehended change has been announced by the relevant Minister: Sydney City Council v Ke-Su Investments Pty Ltd, above; Willow Wren Canal Carrying Co Ltd v British Transport Commission  1 WLR 213 at 215–216; R v Whiteway; Ex parte Stephenson  VR 168 at 171; Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527.
A possible exception may be in cases seeking discretionary relief, for example, prerogative orders or injunctions, where the proposed changes may render any orders futile: Meggitt Overseas Ltd v Grdovic, above.
Generally speaking a possible change in the law, whether judicial or legislative, is not treated as justification for failing to hear a case fixed and ready for trial: Geelong Football Club Ltd v Clifford  VSCA 212; Meggitt Overseas Ltd v Grdovic, above.
However, a court in exercising its discretion as to adjournment, may properly have regard to an appeal brought by parties in another case seeking to test a relevant proposition established in that case: Meggitt Overseas Ltd v Grdovic, above, at 534–535.
An application for leave to appeal in such a case will not, generally at least, afford an adequate basis to grant an adjournment: City of Sydney Council v Satara  NSWCA 148.
As to applications for adjournment where there has been a failure to comply with directions, see Ritchie’s at [s 66.25].
Whether a party to civil litigation, who is facing criminal proceedings in relation to the same subject matter, should be granted a stay or an adjournment depends upon the necessity to ensure that the ordinary procedures of the court do not cause injustice to a party to that litigation.
The Court must balance the prejudice claimed by the defendant to be created by the continuation of the litigation against the interference which would be caused to the plaintiff’s right … to have his claim heard without delay in the ordinary course of the court’s business … Three matters of prejudice have been envisaged in the cases: the premature disclosure of the defendant’s case in the criminal prosecution; the possibility of interference with the defendant’s witnesses prior to the trial of that prosecution; and the effect of publicity given to the civil litigation upon jurors in the criminal trial: Gypsy Fire v Truth Newspapers Pty Ltd (1987) 9 NSWLR 382 at 386, 387.
See also McMahon-Winter v Larcombe  2 NSWLR 155; Ceasar v Sommer  2 NSWLR 929 and McMahon v Gould (1982) 7 ACLR 202.
It would appear that the felonious tort rule, also known as the rule in Smith v Selwyn  3 KB 98, that is, that a plaintiff against whom a felony has been committed by the defendant cannot make that felony the foundation of a cause of action unless the defendant has been prosecuted or a reasonable excuse has been shown for his not having been prosecuted, no longer applies in New South Wales as a separate principle. Cases where it would formerly have applied should be dealt with under the principles set out for concurrent criminal proceedings at [2-0280]: Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26.
Often, at least in cases without a jury, when an adjournment is sought on account of some procedural defect of the other side, for example late service of amended particulars or additional medical reports, an adjournment can be avoided by reserving the rights of the party not in default; as the case proceeds, the adjournment often becomes unnecessary.
There is a need to take into account, in considering the effect of a refusal to grant an adjournment, “the control which the judge will enjoy over the action when it comes on for trial including, particularly in a case such as the present where no jury is involved, the power to deal with any particular applications for adjournments which may subsequently be made”: Squire v Rogers (1979) 39 FLR 106 at 114.
When an adjournment is granted, the parties whose conduct is responsible for the adjournment is usually ordered to pay the additional costs incurred by the other party as a result of the adjournment.
However, as to an order for costs as a panacea, the traditional view that such an order is adequate compensation for delay occasioned by the grant of an adjournment (or amendment) is no longer regarded as sound: GSA Industries Pty Ltd v NT Gas Ltd, above, at 716 per Samuels JA; Commonwealth v Verwayen (1990) 170 CLR 394 at 465 per Toohey J.
Section 66 of the CPA only permits the adjournment of proceedings to a “specified day” and proceedings should not be stood over generally in the exercise of any inherent power of the court. It would not ordinarily be proper to adjourn possession proceedings indefinitely merely for the purpose of allowing the mortgagor to pay the secured debt by instalments: Birmingham Citizens Permanent Building Society v Caunt  Ch 883 and Mobil Oil Co Ltd v Rawlinson (1982) 43 P & CR 221.
When an adjournment is granted, directions should be given to ensure, as far as possible, that the matter be ready to proceed when next listed.
As to the listing of applications for adjournments and the practice of the particular courts or divisions, see the relevant Practice Notes, namely:
Supreme Court, Common Law Division: SC CL 1, cll 25, 34–36
Supreme Court, Equity Division: SC Eq 1, cll 11, 12
District Court, General List: Practice Note DC (Civil) No 1, cl 10
District Court, Commercial List: Practice Note DC (Civil) No 2, cl 13
Local Court, Case Management of Civil Proceedings in the Local Court: Practice Note Civ 1 of 2011, cl 8
CPA ss 56–58, 66
Legal Aid Commission Act 1979 ss 56, 57
Supreme Court Common Law Division — General SC CL 1
Supreme Court Equity Division — Case Management SC Eq 1
District Court, General List: Practice Note DC (Civil) No 1
District Court, Commercial List: Practice Note DC (Civil) No 2
Local Court, Case Management of Civil Proceedings in the Local Court: Practice Note Civ 1 of 2011