Civil Trials Bench Book — Procedure generally

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: s 56(1)); in accordance with the dictates of justice: s 58 and the importance of elimination of delay: s 59 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):

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:

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:

However in Dennis v Australian Broadcasting Corporation [2008] 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: [28].

The Chief Justice said at [29]:

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 [6]; Gummow, Hayne, Crennan, Kiefel and Bell JJ at [111]; Heydon J at [133].

The statements in Sali v SPC Ltd and Frugtniet v State Bank of New South Wales [1999] 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 [2006] NSWSC 73 and see Hans Pet Construction v Cassar [2009] 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 [2014] NSWCA 348.

A short adjournment, for example, for a matter of hours or until the following day, should normally be allowed: Carryer v Kelly [1969] 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 [1967] 1 WLR 327; Vasiljev v Public Trustee [1974] 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 [2006] 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:

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 [1956] 1 WLR 213 at 215–216; R v Whiteway; Ex parte Stephenson [1961] 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 [2002] 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 [2007] NSWCA 148.

It is inconsistent with the statutory framework in the Civil Procedure Act 2005, ss 56–60, to adjourn motions without sufficient reason. For example, an applicant for interlocutory relief in connection with an appeal should anticipate being required to argue the motion on the first return date, particularly where the respondents have filed their evidence in opposition to the motion and are ready to argue the motion. The referrals list operates on the basis that motions are disposed of expeditiously and without delay: Zong v Lin [2021] NSWCA 209 at [6], [11].

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.

See also McMahon-Winter v Larcombe [1978] 2 NSWLR 155; Ceasar v Sommer [1980] 2 NSWLR 929 and McMahon v Gould (1982) 7 ACLR 202. See also [2-2690] Other grounds on which proceedings may be stayed.

It would appear that the felonious tort rule, also known as the rule in Smith v Selwyn [1914] 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 [1962] 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:

Legislation

Practice Notes