Lewis v Nominal Defendant

[2001] QCA 157

[2001] QCA 157

COURT OF APPEAL

McPHERSON JA
WILLIAMS JA
CHESTERMAN J

Appeal No 1784 of 2001

MARK SHANE LEWIS  Plaintiff/Respondent

v.

THE NOMINAL DEFENDANT                 Defendant/Appellant

BRISBANE

..DATE 23/04/2001

ORDER

McPHERSON JA:  This is an application for leave to appeal (as to which it would seem also to be necessary to extend the time for doing so) against an order made by Judge Wall on 25 January 2001 in an action for damages for personal injuries.

It was an interlocutory order dismissing an application that the trial of the action be adjourned.  At that date the trial had been fixed to begin on 30 January 2001.  The refusal of the adjournment application meant that the trial went ahead before Judge Pack on the appointed date, with the consequence, as it happened, that on 5 March 2001 judgment for damages in an amount of some $59,000 was given against the defendant.

The defendant has appealed against that judgment on the ground, which he has now undertaken to include in his notice of appeal, that it will raise as an issue on that appeal the refusal of the adjournment by Judge Wall, together with the result or consequence that it had, as it is asserted, that the defendant was at a disadvantage in conducting its defence at the trial.

With that appeal, which is an appeal against a final order, we have at present no direct concern.  It will come to a hearing before the Court in due course and in the ordinary way.

My own provisional impression is that the propriety of Judge Wall's decision on 25 January is capable of being fully litigated on that occasion and in that appeal, and that that is the proper place for it to fall to be considered.  That would appear to make it unnecessary to pursue the present application for leave to appeal against the interlocutory order refusing the adjournment, or to do so on this occasion without, as would be necessary, re-visiting or visiting the whole appeal and the matters that will be raised upon it.

I consider it would serve the convenience of the parties and of the Court that the two matters be heard together on one occasion, and not piecemeal on two different occasions when much the same point will arise in each instance.  For that reason the application for leave to appeal should, in my view, be adjourned to be heard in conjunction with the appeal against the final judgment itself.

I would therefore make the following orders:

1. Adjourn the application for leave to appeal against the order made in this action on 25 January 2001;

1. Order that the applicant have leave, as it may be advised, to amend the notice of appeal against the final judgment, so as to raise as an issue in that appeal the matter of the prejudice that it is asserted resulted to the defendant at the trial because of the refusal of the adjournment application on 25 January 2001;

1. Order that the application be heard in conjunction with the appeal against the final judgment in this action given on 5 March 2001;

1. Order that the costs of and incidental to this application be paid by the applicant.

WILLIAMS JA:  I agree.

CHESTERMAN J:  I agree.

McPHERSON JA:  The orders will be as I have stated them.

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