Ian David Menzies & Anor v Paccar Financial Pty Ltd ACN 005 592 049

[2015] HCASL 42

IAN DAVID MENZIES & ANOR

v

PACCAR FINANCIAL PTY LTD ACN 005 592 049

[2015] HCASL 42
S232/2014

1. The respondent commenced proceedings against the applicants seeking, inter alia, judgment for moneys allegedly owing under a guarantee and indemnity executed by the applicants ("the Paccar proceedings").  The Paccar proceedings, and separate proceedings commenced by the applicants against the respondent ("the Menzies proceedings"), were listed to be heard together by the Supreme Court of New South Wales over five days, commencing on 13 May 2013. 

2. On the first day of that hearing, the first applicant applied for an adjournment of the Paccar and Menzies proceedings ("the adjournment application").  The primary judge (Harrison AsJ) refused that application.  The Paccar and Menzies proceedings continued in the applicants' absence.  On 13 June 2013, the primary judge gave judgment for the respondent in the Paccar proceedings, and dismissed the Menzies proceedings.  Immediately before delivering judgment in those proceedings, the primary judge refused an application by the applicants to reopen the hearing ("the rehearing application").

3. The applicants appealed from all the abovementioned orders to the Court of Appeal of the Supreme Court of New South Wales (Emmett and Leeming JJA and Sackville AJA) on the ground that the primary judge erred in refusing the adjournment application and the rehearing application.  Dismissing the appeal, the Court of Appeal held that the primary judge had acted in accordance with settled principles and took into account all relevant considerations in refusing the adjournment application and the rehearing application.  The Court also held that the grounds relating to the substantive judgment had not been made out.

4. The applicants now seek special leave to appeal to this Court.  The application seeks to agitate questions of practice and procedure.  The principles informing the exercise of discretion are settled.  In addition, an appeal to this Court would enjoy insufficient prospects of success to warrant the grant of special leave to appeal.  Special leave is refused.

5. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
9 April 2015 P.A. Keane