Dubois v R & V Bergin Pty Ltd

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.