Dubois v R & V Bergin Pty Ltd - [2011] NSWCA 309

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309
Hearing dates: 2 September 2011
Decision date: 30 September 2011
Before: Giles JA at [1]; Basten JA at [3]; Young JA at [30]
Decision:
By majority:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Set aside order of Balla DCJ of 31 August 2011 declining to vacate hearing fixed for 5 September 2011.
(4) Order that said hearing be vacated.
(5) Order each party bear and pay their own costs of this application and appeal and those occasioned by vacation of the hearing date.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PRACTICE AND PROCEDURE- application for leave to appeal from refusal to grant adjournment- appeal will rarely be granted against refusal to grant adjournment- will be granted if refusal will produce an injustice- per Young JA, Giles JA agreeing: in the circumstances, refusal would produce injustice as trial would have to be adjourned part heard and damages would be determined twice due to related proceedings- leave to appeal granted- appeal allowed- trial date vacated- per Basten JA dissenting: the grounds for taking the extraordinary step of changing a judge's discretionary procedural decision are well established- the applicant did not make out a sufficient case for review.
Legislation Cited: Motor Accidents Compensation Act 1999
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Bloch v Bloch [1981] HCA 56; 180 CLR 390
In re the Will of Gilbert (1946) 46 SR (NSW) 318
Maxwell v Keun [1928] 1 KB 645
Petrovic v Taara Formwork (Canberra) Pty Ltd (1982) 62 FLR 451
Category: Principal judgment
Parties: David Dubois (Applicant)
R & V Bergin Pty Ltd (Respondent)
Representation:
Counsel:

E G Romaniuk (Applicant)
P J Nolan (Respondent)
Solicitors:
Nicholl & Co (Applicant)
Moray & Agnew (Respondent)

File Number(s): CA 2007/295080
Decision under appeal

Date of Decision:

2011-08-31 00:00:00

Before:

Balla DCJ

File Number(s):

DC 5174/2007

Judgment

GILES JA : The judgment of Young JA expresses also my reasons for joining in the orders made on 2 September 2011. Seldom will the refusal of an adjournment, a discretionary decision of a procedural nature, be displaced on appeal. Nor should a defendant's consent to a plaintiff's application for an adjournment dominate the trial judge's exercise of discretion. But in the present case that consent reflected concurrence that, because it would be necessary to determine what damage was caused by the 2004 accident and what damage was caused by the 2007 accident, and the 2007 accident could still come before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWCA 309
Decision Date: 30 September 2011

CaseChat Overview and Summary

The appeal concerned an application for leave to appeal from a decision of the District Court of New South Wales refusing to grant an adjournment of a trial. The applicant sought to have the trial date vacated.

The primary legal issue before the Court of Appeal was whether the refusal to grant an adjournment would result in an injustice, thereby justifying an appeal against a discretionary procedural decision. The court was required to consider the established grounds for interfering with a judge's exercise of discretion in relation to adjournments.

By majority, the Court of Appeal held that an appeal against the refusal of an adjournment would rarely be granted, but would be permitted if the refusal would produce an injustice. In the circumstances of this case, the majority found that refusing the adjournment would indeed cause injustice, as the trial would have to be adjourned part-heard, leading to damages being determined twice due to related proceedings. Consequently, leave to appeal was granted, the appeal was allowed, and the trial date was vacated. Basten JA dissented, finding that the applicant had not established a sufficient case for review of the judge's discretionary decision.

Orders

Orders of the court

By majority:

(1) Grant leave to appeal.

(2) Allow the appeal.

(3) Set aside order of Balla DCJ of 31 August 2011 declining to vacate hearing fixed for 5 September 2011.

(4) Order that said hearing be vacated.

(5) Order each party bear and pay their own costs of this application and appeal and those occasioned by vacation of the hearing date.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309
Hearing dates:	2 September 2011
Decision date:	30 September 2011
Before:	Giles JA at [1]; Basten JA at [3]; Young JA at [30]
Decision:	By majority: (1) Grant leave to appeal. (2) Allow the appeal. (3) Set aside order of Balla DCJ of 31 August 2011 declining to vacate hearing fixed for 5 September 2011. (4) Order that said hearing be vacated. (5) Order each party bear and pay their own costs of this application and appeal and those occasioned by vacation of the hearing date. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PRACTICE AND PROCEDURE- application for leave to appeal from refusal to grant adjournment- appeal will rarely be granted against refusal to grant adjournment- will be granted if refusal will produce an injustice- per Young JA, Giles JA agreeing: in the circumstances, refusal would produce injustice as trial would have to be adjourned part heard and damages would be determined twice due to related proceedings- leave to appeal granted- appeal allowed- trial date vacated- per Basten JA dissenting: the grounds for taking the extraordinary step of changing a judge's discretionary procedural decision are well established- the applicant did not make out a sufficient case for review.
Legislation Cited:	Motor Accidents Compensation Act 1999
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Bloch v Bloch [1981] HCA 56; 180 CLR 390 In re the Will of Gilbert (1946) 46 SR (NSW) 318 Maxwell v Keun [1928] 1 KB 645 Petrovic v Taara Formwork (Canberra) Pty Ltd (1982) 62 FLR 451
Category:	Principal judgment
Parties:	David Dubois (Applicant) R & V Bergin Pty Ltd (Respondent)
Representation:	Counsel: E G Romaniuk (Applicant) P J Nolan (Respondent) Solicitors: Nicholl & Co (Applicant) Moray & Agnew (Respondent)
File Number(s):	CA 2007/295080
Decision under appeal	Date of Decision: 2011-08-31 00:00:00 Before: Balla DCJ File Number(s): DC 5174/2007