Newington, Jean Edelweiss Alaine v Beneficial Finance Corp Ltd

[1998] FCA 1790

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 360  of   1997

BETWEEN:

JEAN EDELWEISS ALAINE NEWINGTON
FIRST APPLICANT

JACQUES BONNET
SECOND APPLICANT

GENMAN PTY LIMITED
THIRD APPLICANT

AND:

BENEFICIAL FINANCE CORPORATION LIMITED
RESPONDENT

JUDGE(S):

SPENDER, LINDGREN & FINN JJ

DATE OF ORDER:

5 MARCH 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The relief sought in notice of motion filed 5 March 1998 be refused.

2. The costs of and incidental to the hearing of the notice of motion be the respondent’s costs in the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 360 of 1997

BETWEEN:

JEAN EDELWEISS ALAINE NEWINGTON
FIRST APPLICANT

JACQUES BONNET
SECOND APPLICANT

GENMAN PTY LIMITED
THIRD APPLICANT

AND:

BENEFICIAL FINANCE CORPORATION LIMITED
RESPONDENT

JUDGE(S):	SPENDER, LINDGREN & FINN JJ
DATE:	5 MARCH 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

SPENDER J:  The appellants this morning obtained leave to file a motion before this Full Court seeking that the hearing of the appeal which had been fixed for today and tomorrow be vacated and the appeal be stood into the next sittings of the Full Court for hearing.  The application for an adjournment of the appeal relied on a number of bases, most of which had in fact been the subject of an application for vacation of the appeal heard by his Honour Justice Lindgren and refused by him on 24 February 1998.  It is sufficient in respect of most of the matters relied on to refer to his Honour's reasons for judgment and to adopt the reasons which his Honour gave in respect of the bases then sought for the vacation of the appeal dates.

The history of this matter is unfortunately a very sad one.  It appears in the chronology which is annexed to his Honour's reasons, and even the briefest perusal of that chronology indicates the delay that has attended the finalisation of this litigation.

The grounds on which the appeal was sought to be vacated included a ground that the illness of Ms Newington, who is, it is accepted, the moving party in relation to the appellants’case, is such that the hearing ought not to proceed as ordered on today and tomorrow.

Secondly, it was said that as a matter of fact the appeal books are not able to be prepared, and that that consideration supports the adjournment of the appeal to the next sittings.

In respect of both of those matters it seems to me that neither alone, or with all the other bases argued, is a reason on which the appeal should be vacated.  The medical evidence quite frankly is wholly insufficient, and in respect of the preparation of the appeal books, that is a deliberate choice by the appellants, and they cannot pull themselves up by their own default as a basis for securing an adjournment.

The one matter that seems to be relied on to a greater extent than it was before his Honour on 24 January, is the possible assistance that might be given by Wayne Dunne in the disposal of the appeal.  However, that contribution is wholly conjectural at the moment.  There is simply no evidence before the Court that Mr Dunne might be able to give some evidence of utility in relation to the disposition of the appeal.  It has to be accepted that none of the requirements of O 52 r 36 in relation to further evidence on the appeal has been complied with in this case.  We are being asked to infer that it might be possible for Mr Dunne to give evidence along the lines of the hearsay material contained in Mr Hensby's affidavit.  That falls woefully short of the requirements of the rules in relation to further evidence on the appeal, and it would be wrong in my opinion to delay the appeal in the possible hope that evidence along the expected lines might be obtained.

The sad fact is that on many occasions now the appellants have sought the adjournment of the appeal.  The observations by Lockhart J in October and November made it plain that the appeal was to proceed in March, and none of the submissions made quite extensively by Mr Rollinson on behalf of the appellants persuades me that we ought to accede to the relief sought by the motion this morning to vacate the appeal.  The relief sought by the notice of motion, for which leave to file was given this morning, in my opinion should be refused.

LINDGREN J:   I agree that the application for adjournment should be refused for the reasons stated by the presiding judge.

FINN J:   I agree likewise.

I certify that the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Lindgren & Finn.

Associate:

Dated:            5 March 1998

Counsel for the Applicants:	M Rollinson
Solicitor for the Applicants:	Holman Webb
Counsel for the Respondent:	A J H Morris QC and M G Skinner
Solicitor for the Respondent:	Landerer & Co
Date of Hearing:	5 March 1998
Date of Judgment:	5 March 1998