Magjarraj v Asteron Life Limited

[2010] NSWCA 207

New South Wales

Court of Appeal

CITATION:	Magjarraj v Asteron Life Limited [2010] NSWCA 207 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18 August 2010
JUDGMENT DATE:	18 August 2010
JUDGMENT OF:	Hodgson JA at [1], [9]; Macfarlan JA at [8]
EX TEMPORE JUDGMENT DATE:	18 August 2010
DECISION:	Application for leave to appeal dismissed with costs.
CATCHWORDS:	PROCEDURE – Application for leave to appeal – Whether grounds for leave made out.
CATEGORY:	Procedural and other rulings
PARTIES:	Ali MAGJARRAJ (applicant) ASTERON LIFE LIMITED (respondent)
FILE NUMBER(S):	CA 2010/11387
COUNSEL:	R M ARDINO (solicitor) (applicant) R A CAVANAGH (respondent)
SOLICITORS:	Morgan Ardino & Co (applicant) Lander & Rogers Lawyers (respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 3230/09
LOWER COURT JUDICIAL OFFICER:	Barrett J
LOWER COURT DATE OF DECISION:	15 December 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Magjarraj v Asteron Life Limited [2009] NSWSC 1433

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2010/11387

HODGSON JA
MACFARLAN JA

WEDNESDAY 18 AUGUST 2010

Alija MAGJARRAJ v ASTERON LIFE LIMITED

Judgment

1 HODGSON JA: The court is dealing with an application for leave to appeal from a decision of Barrett J delivered on 15 December 2009.

2 When the matter was called Mr Ardino, who had been instructed for the applicant, told us that he had been attempting to contact the applicant over the last two weeks but had been unable to do so, and did not consider he had instructions that would enable him to make further submissions in the matter. Further, he indicated to the Court that he would rely on the written submissions already put to the court.

3 The decision of Barrett J was to dismiss the proceedings in circumstances set out in the judgement of Barrett J of 15 December 2009, which I will not repeat.

4 Broadly it is submitted that leave to appeal should be granted because the proceedings were dismissed in circumstances where the applicant had communicated to the judge that he was unable to appear by reason of illness, and had supported that with a medical certificate from a doctor.

5 It is said that the primary judge erred in saying, in effect, there was no application for an adjournment properly before him, and not being satisfied that a ground had been made out to grant an adjournment. In my opinion the material does not suggest that the primary judge was in error in those respects or in any other respect. It is not an appropriate way to apply for an adjournment to send a facsimile to the judge and to the opponent; and, whilst a judge may treat that sort of communication as amounting to an application, there is no obligation on the judge to do so.

6 In the circumstances set out in the primary judge's judgement, I do not see any possibility of error being established in so far as the primary judge concluded that he was not satisfied that the applicant was unable to attend the Court, and was not satisfied that a ground had been shown for an adjournment and for not proceeding to deal with the case.

7 In those circumstances, in my opinion the application for leave to appeal should be dismissed with costs.

8 MACRFARLAN JA: I agree.

The application is dismissed with costs.

oOo

23/08/2010 - Correction to the names of the solicitors - Paragraph(s) cover