City of Sydney Council v Satara

[2007] NSWCA 148

New South Wales

Court of Appeal

CITATION:	City of Sydney Council v Satara [2007] NSWCA 148
HEARING DATE(S):	8 June 2007
JUDGMENT OF:	Beazley JA at 1; Tobias JA at 2; McColl JA at 3
EX TEMPORE JUDGMENT DATE:	8 June 2007
DECISION:	1. Grant leave to appeal. 2. Notice of appeal to be filed within seven days. 3. Appeal dismissed. 4. Respondent to pay the appellant’s costs of the application for leave to appeal and the appeal, and, with respect to the latter, to have a certificate under the Suitors’ Fund Act 1951 if otherwise qualified.
CATCHWORDS:	PROCEDURE – adjournments – discretionary considerations – trial date vacated to await outcome of application for special leave to appeal to the High Court from a judgment on arguably related principle in the Court of Appeal – improper exercise of discretion.
LEGISLATION CITED:	Civil Liability Act 2002 Civil Procedure Act 2005 Evidence Act 1995 Suitors’ Fund Act 1951 Workers Compensation (Dust Diseases) Act 1942
CASES CITED:	Geelong Football Club Ltd v Clifford [2002] VSCA 212 Hinckley & South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32 James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729 Meggitt Overseas Ltd & Ors v Grdovic (1998) 43 NSWLR 527 Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 North Sydney Council v Roman [2007] NSWCA 27; (2007) 150 LGERA 419 R v Whiteway; Ex parte Stephenson [1961] VR 168 Ramsay v Aberfoyle Manufacturing Co (Aust) Pty Ltd [1935] HCA 75; (1935) 54 CLR 230 Re Chapman’s Settlement Trusts [1953] 1 All ER 103 Re Downshire’s Settled Estates [1953] Ch 218; [1953] 1 All ER 103 Re Yates’ Settlement Trusts [1954] 1 All ER 619 Repatriation Commission v Law (1980) 47 FLR 57 South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113 Sydney City Council v Ke-Su Investments Pty Ltd [1985] 1 NSWLR 246 Thornton v Repatriation Commission (1981) 52 FLR 285 Watson v Watson (1968) 70 SR (NSW) 203 Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 WLR 213
PARTIES:	City of Sydney Council - Claimant Megan Satara - Opponent
FILE NUMBER(S):	CA 40276/07
COUNSEL:	D F Rofe QC with B Hull - Claimant H J Marshall SC with D C Morgan - Opponent
SOLICITORS:	Home Wilkinson Lowry - Claimant Beilby Poulden Costello - Opponent
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20035/05
LOWER COURT JUDICIAL OFFICER:	Rothman J
LOWER COURT DATE OF DECISION:	23 April 2007

CA 40276/07

BEAZLEY JA
TOBIAS JA
McCOLL JA

Friday 8 June 2007

CITY OF SYDNEY COUNCIL v MEGAN SATARA

Judgment ex tempore

1 BEAZLEY JA: I agree with McColl JA.

2 TOBIAS JA: I also agree with McColl JA.

3 McCOLL JA: This is an expedited application for leave to appeal and, if leave be granted, an appeal challenging the order made by Rothman J adjourning the hearing of these proceedings which were fixed for hearing for three weeks commencing on 30 April 2007. The only ground relied upon for setting aside his Honour’s decision is that in exercising his discretion on a matter of practice and procedure, he fell into reviewable error in taking into account an irrelevant consideration, namely an application for special leave to appeal pending in the High Court of Australia from the decision of this Court in North Sydney Council v Roman [2007] NSWCA 27; (2007) 150 LGERA 419 delivered on 27 February 2007.

Statement of the case

4 The opponent brought proceedings against the claimant by statement of claim filed on 18 February 2005. She alleged that on or about 21 February 2002 at approximately 5.30pm while walking in Bent Street in the City of Sydney she slipped on a disabled ramp and fell, and that the claimant was negligent in the following respects:

“(a) Failure to have a safe ramp.
(b) Failure to carry out adequate repair of the ramp.
(c) Failing to repair and or maintain the ramp so that its surface has a coefficient of friction which is compliant with Australian standards.
(d) Failing to properly inspect so that the ramp was safe.
(e) Failure to provide adequate warning, or any warning at all, that the pedestrian ramp was unsafe.
(f) Failure to upgrade and otherwise monitor the ramp in accordance with Australian Standards.
(g) Failure to monitor the surface of the ramp.”

The statement of claim asserted that further particulars of negligence would be provided but, so far as the papers reveal, those which I have set out above are the only relevant ones.

5 In its amended defence the claimant denied that it was guilty of negligence but, in addition pleaded:

“4A. Alternatively or additionally at all material times the defendant was a road authority within the Civil Liability Act 2002 as amended [‘the Act’] and as such was not liable in proceedings to which Part 5 of the Act applies for harm to the Plaintiff arising out of a failure of the defendant to carry out road work (within the meaning of s.45 of the Act) to or upon the disabled ramp situated at the northern footway of Bent Street between Loftus and Gresham Street, Sydney NSW, (being the ramp on which the plaintiff allegedly slipped and fell), unless at the time of the alleged failure (‘the relevant time’) the defendant had actual knowledge of the particular risk the materialisation of which resulted in the harm (‘the knowledge’);
4B. The defendant says and the facts are that the proceedings herein are proceedings to which Part 5 of the Act applies and the plaintiff in its claim does not and cannot assert that the defendant had any such knowledge at the relevant time;
4C. Alternatively and/or additionally the defendant says that at the relevant time aforesaid the defendant did not have such knowledge.”

6 The matter was first listed for hearing before Grove J on 3 October 2006 with an estimated hearing length of three to four days. It appears the parties recognised at that time that the matter was likely to take two to three weeks rather than the estimate of three to four days. Grove J did not have time to hear a matter of that duration. Accordingly, with his Honour’s concurrence, the matter was placed in the call-over list on 5 October 2006 to be allocated another hearing date. On 5 October the matter was fixed for hearing to commence on 30 April 2007 with an estimate of three weeks hearing time.

7 On 27 February 2007 the Court delivered the decision in North Sydney Council v Roman. In that case the Court held by majority (Bryson and Basten JJA, McColl JA dissenting) that for the purposes of s 45 of the Civil Liability Act 2002 actual knowledge must be found in the mind of an officer within the Council having delegated (or statutory) authority to carry out the necessary repairs. McColl JA held that for the purposes of s 45 the knowledge of those persons who, acting within the scope of their duties, learnt of the particular risk and were under an obligation to report it as part of the roads authority’s system of maintaining the roads under its jurisdiction, should be attributed to the roads authority.

8 On 18 April 2007 the opponent’s solicitors served the claimant’s solicitors with a notice of motion to vacate the hearing date returnable on 23 April 2007 supported by an affidavit of a Mr Matthew Garling. Mr Garling’s affidavit annexed the decision in North Sydney Council v Roman, asserted that it directly related to the matters to be considered in the instant case, in particular the application of s 45, and stated that an application for special leave to appeal from the decision in North Sydney Council v Roman was filed in the High Court on behalf of the plaintiff in that case on 23 March 2007.

9 The claimant opposed the application to vacate the hearing date. Mr Jason Leonard, the solicitor for the claimant, swore an affidavit deposing that after speaking to the High Court Registry in Sydney he had been informed that it was unlikely the special leave application in North Sydney Council v Roman would be heard until at least 15 June 2007. He also disputed Mr Garling’s statement concerning the relevance of the decision to the instant case saying:

“The Roman case dealt with a fact scenario where certain North Sydney Council employees were found to have had some knowledge of the defects alleged by the plaintiff in that case. Based on my instructions, there were no persons in the employ of my client at the time of the plaintiff’s alleged fall on 21 February 2002, who had knowledge of the defects in the footpath as alleged by the plaintiff in these proceedings.”

10 The claimant submitted before the primary judge that having regard to the fact that the trial had been fixed for many months and involved the calling of many liability and medical witnesses, vacating it to an indefinite future date would be unjust and unfair to it as it wished the trial to proceed on the allocated date and be completed. His Honour was also informed that the average time interval from the date of filing a special leave application to the date of hearing same could range from three to six months.

The primary judgment

11 The primary judge accepted (at [5]) that the mere fact that an application for leave to appeal to the High Court had been made in North Sydney Council v Roman did not ensure that leave would be granted. Indeed his Honour accepted that “if one were to take a statistical view, which one ought not, the likelihood is that leave would not be granted.” Nevertheless he opined that:

“…were the judgment of the Court of Appeal overturned in the High Court, there would be a significant, indeed, overwhelming difference in the nature of the case that is to be run commencing 30 April.”

12 His Honour referred to authorities relied upon by the claimant to support the proposition that a case ought not to be adjourned merely because of a prospective change in the law. He distinguished between cases in which an application for an adjournment was sought because of an impending legislative change and those in which an appellate court might determine the law on a different basis. He relied for the purposes of that distinction on the decision of Mason P (Sheller and Beazley JJA agreeing) in Meggitt Overseas Ltd & Ors v Grdovic (1998) 43 NSWLR 527. His Honour distinguished Geelong Football Club Ltd v Clifford [2002] VSCA 212 to which I will refer below, on the basis that in that case, where an adjournment was sought pending an application for special leave, the case in which the latter application was pending was not one which would have necessarily or even probably have decided the issues then before the Court.

13 His Honour then said:

“12. It seems to me that the proceedings in this case depend fundamentally on the provisions of section 45 of the Civil Liability Act 2002 (NSW). That issue is a matter for which leave to appeal is being agitated in the High Court of Australia. As it currently stands there is a difference in the Court of Appeal as to the proper construction of the section, and it is clearly a section which impacts greatly upon a number of cases that are run both in this Court and the District Court and on the administration of the justice in this State.
13. I have been told that there is a real possibility that, if the High Court were to confirm the reasoning in North Sydney Council v Roman , these proceedings would not continue. For my own part, I can see that there may be a number of distinctions between the factual circumstances in each case, but I do not have, at this stage, the level of detailed familiarity with the evidence to be adduced at trial.
14. In dealing with the application to the High Court, I am not guessing, what the High Court may or may not do on a special leave application. My overriding function, as made clear by section 56 of the Civil Liability Act 2002 (NSW), is to facilitate the fair, equitable and expeditious resolution of the real issues in the proceedings. I am prepared, because I consider that it will impact upon evidence and indeed the fundamental basis for the proceedings in question, to vacate the date until we are aware of the determination of the High Court on the special leave application. I am not prepared at this stage to vacate the hearing of the matter without some recourse back to the Court in terms of the special leave application. For those reasons I will vacate the hearing date of 30 April 2007. I will bring the matter before me for mention only on Tuesday 3 July 2007 at 9.30pam. I will reserve the costs of today and the costs thrown away and I will deal with costs on that date.”

Submissions

14 The claimant submits that the primary judge erred in exercising his discretion to grant an adjournment by taking into account an irrelevant consideration, being the pending special leave application in North Sydney Council v Roman, and too, failed to take into account a relevant consideration, that that decision was irrelevant, having regard to the facts of this case. It says that unlike in North Sydney Council v Roman, the only person involved in inspecting the area where the opponent fell will give evidence that he had no prior knowledge of any defect there. It relies on a statement to that effect prepared by Mr Robert McCrystal for the purposes of ss 64 and 67 of the Evidence Act 1995, although it appears that the claimant intends to call Mr McCrystal to give oral evidence.

15 The claimant also contends that granting the adjournment was inconsistent with ss 56 and 57 of the Civil Procedure Act 2005. It points out that it is unlikely to get a hearing date for a three-week trial until either the end of 2007 or perhaps not until early 2008. If it was required to wait until the outcome of the special leave application, or the High Court’s ultimate judgment if special leave is granted, it submits that this would be an added delay which is contrary to the requirements of timely disposition and the just, quick and cheap resolution of the proceedings for the benefit of both parties. Mr D Rofe QC, who appeared for the claimant with Mr B Hull, handed the Court a schedule analysing the time taken from the date of New South Wales Court of Appeal decisions to High Court decisions in seven cases. That indicates that the time can range from fourteen months up to twenty-four months. He also informed the Court that inquiries with the High Court Registry made this morning indicate August is the earliest special leave sitting in which North Sydney Council v Roman might be listed.

16 The opponent submits that the claimant has not established any basis upon which the Court should interfere with a discretionary decision on a matter of practice and procedure. She disputes the claimant’s submission that the case is factually distinguishable from North Sydney Council v Roman, and contends that having regard to the condition of the ramp at the time of the accident, it will be open to the trial judge to infer the claimant had the necessary s 45 knowledge, so that the question of the proper construction of that provision will arise. Mr H Marshall of Senior Counsel, who appears with Mr D Morgan for the opponent, says the plaintiff’s case is that the aggregate on the ramp was exposed and so worn that its slipperiness was obvious. For this reason, he contends, the defect was patent in the same sense as the hole in Roman. However, as I understand the opponent’s submission before the primary judge which he repeated today, if the majority decision in Roman stands, the case will not proceed, as the opponent accepts she will not be able to sheet the relevant knowledge home to a person with delegated (or statutory) authority to carry out the necessary repairs.

Consideration

17 Section 66 of the Civil Procedure Act 2005 empowers the Court, subject to the Rules of Court, at any time and from time to time to adjourn to a specified day any proceedings before it or any aspect of such proceedings. This is a “wide and ample” power to adjourn the hearing of any matter, the principal consideration being what is necessary to do justice between the parties: Sydney City Council v Ke-Su Investments Pty Ltd [1985] 1 NSWLR 246 at 252 per Kirby P; Hinckley & South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32 (at 39) Farwell J (“the court has an inherent power to direct that any matter which comes before it should stand over for a period if the court thinks that that is the proper way to deal with the matter”).

18 The Court of Appeal will only interfere with a decision to grant or refuse an adjournment in exceptional cases, and then only where the discretion has been exercised on a wrong principle or resulted in a serious injustice: Meggitt Overseas Ltd v Grdovic (at 528) per Mason P (with whom Sheller and Beazley JJA agreed).

19 In Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd [1935] HCA 75; (1935) 54 CLR 230 at 253, Starke J said:

“Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future."

20 Accordingly, the principle is that the Court should deal with the law as it is, rather than speculate about changes in the law: Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 (at [49]) per Spigelman CJ (Beazley and Tobias JJA agreeing); applying Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (at 253); Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 WLR 213 at 216; Sydney City Council v Ke-Su Investments Pty Ltd (esp at 251-252, 257, 258); and Meggitt Overseas Ltd v Grdovic (at 530, 537).

21 Meggitt Overseas Ltd v Grdovic concerned the question whether a decision of judge sitting in the Dust Diseases Tribunal to grant a adjournment following the announcement of proposed amendments to the dust diseases legislation should be set aside. In holding that it should, Mason P held (at 530 – 531) that the judge erred in taking into account the prospect of legislative amendment as a controlling factor in the decision granting the adjournment, an error compounded by the apparent intent that the hearing date would be deferred until the amending legislation was passed and the plaintiff became entitled to take advantage of it. The effect of the amending legislation, it was believed, would be to remove an anomaly perceived to have arisen following the decision in James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729. Mason P pointed out (at 530) that the decision in James Hardie turned upon the intention of Parliament expressed in the Workers Compensation (Dust Diseases) Act 1942 as discerned by the Court of Appeal, and said:

“The rule of law in a democratic society demands that such intention should be respected and followed in all cases, subject only to any question of constitutional validity. This obligation of fidelity is underscored in the present case by the duty of the Dust Diseases Tribunal to respect and follow the interpretation of the legislation expounded by the Court of Appeal.”

22 Mason P reviewed, and applied, (at 532 ff) the line of cases denying that it is proper to grant a contested adjournment of legal proceedings for the purpose of enabling one party to take advantage of a proposed amendment of the enacted law. He distinguished two situations, the first, and the only one relevant for present purposes being that upon which the primary judge relied. He said (at 534 – 535):

“I would distinguish cases where an adjournment is sought to enable a proposition established in a decided case to be tested in an appeal brought by the parties to that case. Such a situation has been correctly viewed differently from the case at hand: see Re Yates' Settlement Trusts [1954] 1 All ER 619; [1954] 1 WLR 564; R v Whiteway (at 171); Thornton v Repatriation Commission (1981) 52 FLR 285; 35 ALR 485. The reason why a pending appeal is different from a proposal for legislative amendment is that there is a level of certainty that the point will be addressed; and knowledge that if and when it is, the decision of the court higher in the appellate chain will declare the law on the relevant topic with retrospective effect: see Ha v New South Wales (1997) 71 ALJR 1080 where the High Court said that it is no part of the judicial function to over-rule prospectively.”

23 In Re Yates Settlement Trusts [1954] 1 All ER 619 persons interested under a settlement reached a compromise in regard to their respective rights under the settlement, which, if it took effect during the lifetime of the settlor, would save a considerable amount of estate duty. The settlor was eighty years of age and in delicate health. On an application to the court to approve the scheme it was submitted that the compromise fell within Re Downshire's Settled Estates [1953] 1 All ER 103 and that the court had jurisdiction to approve the scheme if it thought fit. At the date of the hearing of the application an appeal from the decision of the Court of Appeal in Re Chapman's Settlement Trusts ([1953] 1 All ER 103), which was decided by the Court of Appeal at the same time as Re Downshire, was before the House of Lords which had reserved its decision. It appeared to be common ground that the decision of the House of Lords might affect Re Downshire. The judge adjourned the hearing of the application until the decision of the House of Lords in Re Chapman was given.

24 On appeal, the Court of Appeal held that in the special circumstances of the case, being that the settlor might not have long to live and an adjournment might result in an injustice to the parties if he died before the application was heard, and as Re Downshire was not under appeal, the judge should hear and determine it. The Master of the Rolls, Sir Raymond Evershed (Romer LJ agreeing) held (at 621) that:

“… It may well be that, if a case, and an important case, is known to be subject to appeal to the House of Lords, or from a judge of first instance to the Court of Appeal, a judge may reasonably and properly think that it is in the general public interest not to decide another case on the same lines until the result of the case under appeal has become known. I say that it may be so. It depends very much on all the circumstances of the particular case …” (emphasis added)

In the special circumstances of that case his Lordship concluded that the fact that Re Chapman was pending before the House of Lords was not a sufficient justification for the judge's decision to adjourn the case.

25 Denning LJ (at 622) observed that the judge should have applied the law as it then stood “without any misgivings as to what the House of Lords may hereafter say”. Romer LJ took a more flexible approach, consistent with the Master of the Rolls. He referred (at 622) to the general principle enunciated by Farwell J in Hinckley & South Leicestershire Permanent Benefit Building Society v Freeman to which I have referred. Notwithstanding that, having regard to the fact that Re Downshire had not been appealed from and may apply, and in the special circumstances of the case, he held the matter should be dealt with by the judge.

26 In R v Whiteway; Ex Parte Stephenson [1961] VR 168 the trial judge adjourned the matter on the basis that a bill giving the Court discretion over technical matters was before Parliament and “may be passed in the next few days”. In refusing an order nisi for a writ of mandamus to compel the Victorian Licensing Court to proceed with the hearing of the application, Dean J observed (at 171):

“Sometimes adjournments have been made pending the decision of another case and, in general, this is legitimate enough – Re Yates Settlement Trusts , [1954] 1 All ER 619. At the same time, an indefinite adjournment may amount to a denial of justice, and a refusal by the tribunal to perform its duty to hear and determine matters before it. See Hinckley and South Leicestershire Permanent Benefit Building Society v Freeman, [1941] Ch 32; [1940] 4 All ER 212; Robertson v Cilia , [1956] 3 All ER 651. The question is whether in the present case the adjournment was dictated by relevant considerations or whether, on the other hand, the discretion was exercised for extraneous reasons. I think it was the duty of the court, when the applications came on for hearing, to deal with them in accordance with the law as it then stood… It would be a cause of injustice if courts could adjourn cases because they had some real or imagined belief that the law might be amended. ” (emphasis added).

27 McHugh JA referred with approval to the passage I have italicised in Dean J’s judgment in Sydney City Council v Ke-Su Investments Pty Ltd (at 258).

28 In Thornton v Repatriation Commission (1981) 52 FLR 285 (at 292) Fisher J distinguished Ramsay v Aberfoyle Manufacturing Co (Aust) Pty Ltd and Re Yates, the former on the basis that it was dealing with an amendment to the law and the latter on the basis of the special circumstances of the case, namely the prejudice which persons would suffer if the elderly settlor died during the period of adjournment. Thornton was an administrative law case. The plaintiff sought judicial review of a decision taken by the Repatriation Commission to defer determining her application for a war widow’s repatriation pension until the High Court had given its decision in an appeal, in which judgment had been reserved, from Repatriation Commission v Law (1980) 47 FLR 57. Fisher J held that delaying the determination pending the decision of the High Court was not improper or incapable of justification where the decision of the High Court would clarify or settle the law. He said (at 292):

“The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is on the evidence a delay for a considered reason and not in consequence of neglect, oversight or perversity. Moreover it is a delay for a finite and not an indefinite period. Admittedly it is uncertain when the High Court will hand down its decision but one is not entitled to assume that there will be any excessive delay. There have been extensive changes made to the Repatriation Act and the procedures thereunder in recent years, and the consequential litigation renders it understandable that claims are not being dealt with, at least for the time being, as expeditiously as in the past.”

29 The question of granting an adjournment pending the hearing of a special leave application was considered in Geelong Football Club v Clifford. The trial judge adjourned the proceedings, effectively indefinitely, so that it might await the outcome of an application for special leave to appeal to the High Court, and the determination of that appeal if special leave be granted, brought in relation to this Court’s decision in South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113. At the time the adjournment was granted, although the application for special leave to appeal had been filed, it had not been heard. It appears it had not been heard at the time the appeal was heard: see judgment at ([2]).

30 Ormiston JA (with whom Callaway JA agreed) held that the decision to grant the adjournment demonstrated reviewable error, saying:

“6 The error here demonstrated was the judge’s failure to appreciate that a party is entitled to a trial of a proceeding ready for hearing unless it is clearly shown that injustice is likely to be caused if the adjournment is refused. It is not ordinarily sufficient to show that an appeal yet to be heard in another case may reach a legal conclusion which could support the claim made by the party seeking the adjournment. Of course there are no black and white rules preventing adjournments in appropriate circumstances. It is not, for example, necessary to say anything here about the adjournment of criminal trials, where the accused may suffer the stigma of being found guilty of an offence where the constituent elements are under direct challenge in an appeal court. On the civil side there may be cases involving some technical rule of law or the disputed meaning of a particular section, where an appeal court has reserved its decision (or, even, is just about to hear argument), where the hearing and the resolution of the case will directly depend on the outcome of an appeal in a test case, such that it would be preferable to await the expected outcome. The sooner the appeal is likely to be resolved, the stronger may be the argument in favour of delay, especially in terms of convenience to parties and the trial court itself.

7 Generally speaking, however, a possible change in the law, whether judicial or legislative, is not to be treated as justification for failing to hear a case fixed and ready for trial. It is not necessary to examine such authorities as there are on the subject, for they were not referred to in argument and all deal with particular cases . Possible changes in the law are too speculative and it is ordinarily rare that one can foresee that a decision on appeal will necessarily apply in the subject proceeding. In the end, as I have said on another occasion, it is the principle which counts, not the outcome of a particular case. Many issues are on appeal in the High Court at any one time and many applications for special leave are in the pipeline, but one cannot demand that trials be delayed and adjourned merely because the outcome of any one of those appeals may have a bearing on the outcome of a particular trial. One may think of exceptions, particularly where the issue is limited and the appeal to the High Court is intended to resolve a dispute between two directly conflicting lines of authority binding on the trial court, but that would seem to be a rare situation.

8 In the present case there was no justification for taking the case out of the list. There is in fact no appeal on foot in the South Tweed Heads Rugby Club case and it would be quite wrong to await the outcome of that particular appeal before hearing the present case, even assuming special leave to appeal will be granted. If there is an error in principle here, then the unsuccessful party can appeal the outcome and the answer to that appeal may lie in the High Court's decision, if it reaches one, in the South Tweed Heads Rugby Club case or possibly in some other case relating to liability in negligence.” (emphasis added).

31 A case which has been specially fixed for hearing at a date some months in the future should proceed to hearing unless to refuse an adjournment would prejudice a party to the point of denying justice: Watson v Watson (1968) 70 SR (NSW) 203 at 206 per Asprey JA; at 210 – 211 per Holmes JA. This principle is accentuated by ss 56 and 57 of the Civil Procedure Act. Section 56(1) sets out the overriding purpose of the Civil Procedure Act and the Rules of Court being to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Section 56(2) requires the Court to seek to give effect to that overriding purpose when it exercises any power given to it by the Act. Section 57 requires the Court, for the purpose of furthering the overriding purpose, to manage proceedings in the Court having regard to the objects set out therein which include the efficient disposal of the business of the Court (s 57(1)(b)), the efficient use of available judicial and administrative resources (s 57(1)(c)) and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties. Section 57(2) requires that the Act be applied as best to ensure the attainment of the objects referred to in s 57(1).

32 It is apparent from the authorities that there are circumstances in which it is open to a trial judge to adjourn the hearing of a case pending the outcome of an appeal yet to be heard in another case. In Meggitt, Mason P pointed out that one of the distinguishing features in such cases was the “level of certainty that the point will be addressed” and the “knowledge that if and when it is, the decision of the Court higher in the appellate chain will declare the law on the relevant topic with retrospective effect.” In Yates, too, the fact that a case was known to be subject to appeal to the House of Lords or from a judge at first instance to the Court of Appeal was a matter a judge might reasonably take into account in deciding not to hear a case on the same lines until the result of the case under appeal had become known. In Thornton, too, it was certain that there would be a decision of the High Court on the relevant point of law as, at that stage, the High Court had reserved its decision.

33 The situation is different, however, in my view, when only a special leave application has been filed. In that case, as Geelong Football Club v Clifford demonstrates, if the fact that such an application was on foot was the basis for an adjournment, many trials would be delayed and adjourned merely because the outcome of one of the many cases on appeal to the High Court, or the subject of an application for special leave, might have a bearing on the outcome of a particular trial.

34 That was this case at the time the adjournment was granted. There was no certainty that the High Court would grant special leave in North Sydney Council v Roman, or, if it did, when the appeal will be heard, let alone decided. Further, the question whether the outcome in North Sydney Council v Roman will affect the present trial is certainly debateable as between the parties.

35 Moreover, in considering how to exercise his s 66 power of adjournment, the primary judge was required to comply with the dictates of ss 56 and 57 of the Civil Procedure Act. His Honour was alert to his overriding function and referred to s 56. However he considered that the outcome of North Sydney Council v Roman might affect the evidence. As I have indicated that may be debateable. More significant in my view is the fact that the application to vacate the hearing was made one week before it was due to commence. Vacating a three week hearing must have an adverse effect not only on the resources already allocated to the preparation for hearing, but also to the efficient use of available judicial resources.

36 Further even if the outcome of North Sydney Council v Roman would clearly affect this case, the uncertainly attaching to the timing of the hearing of the special leave application, and any consequential hearing and decision if leave be granted, was too great to warrant adjourning a three week trial, which had been specially fixed for so long.

37 The duty of the Court was to act upon the law as stated in North Sydney Council v Roman and not to speculate upon the prospect that special leave to appeal would be granted, with the prospect that, in due course, the ultimate decision may, not will, affect the outcome in the instant case.

38 In so saying I am not intending to indicate that adjournments should be granted whenever a special leave application has been filed if the outcome could affect the outcome of the pending trial. As the authorities indicate each case must turn on its own facts. The position may (but not necessarily) have been different if special leave had been granted and the hearing of the appeal expedited.

39 In my view, with respect, despite his Honour’s reference to s 56, the primary obligation in order to give effect to the overriding purpose was to ensure that the matter proceeded to hearing on the date long allocated to it. The prejudice that might flow to both parties, having regard to the passage of time and the possibly fading recollection of witnesses, was a real issue his Honour ought to have taken into account in determining how to exercise his discretion.

40 His Honour erred in granting an adjournment at the time he did and this is one of the exceptional cases in which the Court ought intervene and so conclude.

41 However the question arises what relief the Court could and should grant. The claimant does not seek to set aside any order, nor is there one to set aside, save perhaps the order adjourning the matter before his Honour on 3 July. As the authorities and this judgment indicate, much can change depending on the stage the application for special leave in North Sydney Council v Roman has reached. It would clearly be open to the opponent to renew her adjournment application if the position in the High Court becomes clearer.

42 In my view the appropriate approach is to leave the matter in Rothman J’s list for 3 July on which occasion he should proceed in accordance with the principles set out in this judgment. However, as I am also of the view that the claimant was justified in seeking to challenge his Honour’s decision to adjourn the matter at the time he did, it is also my view that the claimant should have its costs of the application for leave to appeal.

43 I propose the following orders:

1. Grant leave to appeal.

2. Notice of appeal to be filed within seven days.

3. Appeal dismissed.

4. Respondent to pay the appellant’s costs of the application for leave to appeal and the appeal, and, with respect to the latter, to have a certificate under the Suitors’ Fund Act 1951 if otherwise qualified.

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