Atanaskovic v Birketu Pty Ltd (ACN 003 831 392)

In *Atanaskovic v Birketu Pty Ltd*, the appellants sought to vacate a three-day appeal hearing that had been scheduled. The primary reason for this application was that the appellants' Senior Counsel had travelled to the United Kingdom in November 2020 and, due to the COVID-19 pandemic, was unlikely to be able to return to Australia in time for the hearing. The dispute therefore concerned the court's discretion to grant an adjournment in circumstances where the interests of justice were in competition, with the appellants facing prejudice due to their counsel's unavailability and the respondents facing prejudice from further delay.

The central legal issue before Gleeson JA was whether to grant the adjournment application, requiring an assessment of the competing claims of prejudice and the overall interests of justice. This involved considering the impact of the pandemic on the ability of legal practitioners to travel and attend court, and balancing this against the need for efficient and timely resolution of litigation.

Gleeson JA refused the application, finding that the prejudice to the respondents from further delay outweighed the prejudice to the appellants from proceeding with the hearing without their preferred Senior Counsel. The court applied the principle that applications for adjournment are discretionary and must be determined by reference to the specific circumstances of the case, with a focus on achieving a just and efficient outcome. The court considered the appellants' proactive steps in engaging Senior Counsel and the timing of their travel, but ultimately determined that the respondents' right to have their appeal heard in a timely manner was paramount.

The notice of motion filed on 5 February 2021 was dismissed, and the appellants were ordered to pay the respondents’ costs of the motion.