Sali v SPC Ltd

[1993] HCA 47

HIGH COURT OF AUSTRALIA

BRENNAN, DEANE, TOOHEY, GAUDRON AND McHUGH JJ

HASET SALI v. S.P.C. LIMITED AND ANOR

(1993) 67 ALJR 841

6 October 1993

Orders

Appeal dismissed with costs.

Decisions

BRENNAN, DEANE AND McHUGH JJ Special leave to appeal was granted in this case to determine whether the refusal to grant the appellant an adjournment of an appeal pending in the Full Court of the Supreme Court of Victoria resulted in a miscarriage of justice. In our opinion, the refusal did not amount to a miscarriage of justice. Nor did the Full Court fall into error in refusing to adjourn the hearing of the appeal.

Factual background

2. The appellant is a practising solicitor. He sued the first respondent in the Supreme Court of Victoria for the balance of moneys payable by way of a retirement allowance upon his retirement from the first respondent's Board of Directors. He claimed that the first respondent owed him the sum of $184,346.37 together with interest at the rate of 21 per cent per annum from 9 May 1990. In the alternative, he sued the second respondents, a firm of solicitors, for damages for negligence. This claim alleged that the solicitors gave negligent advice to the first respondent in relation to the payment of retiring allowances. By a judgment delivered on 1 November 1991, Ormiston J dismissed both claims. The appellant appealed to the Full Court of the Supreme Court. He relied on eight grounds of appeal against the first respondent and three grounds against the second respondent. None of the grounds appears to involve questions of any great complexity.

3. On 25 February 1992, Master Bruce ordered that the appellant pay costs of $106,321.37 in respect of the action. When the appellant failed to pay the costs, the first respondent caused a bankruptcy notice to issue against him. On 13 April 1992, the Full Court ordered that there be a stay of execution of the orders made by Ormiston J for a period of three months. On 14 August 1992, a further summons
for a stay of execution of the orders was dismissed upon the respondents giving an undertaking that, pending determination of the appeal or being released by the Full Court from the undertaking, they would not seek a sequestration order. The appellant gave an undertaking to prosecute the appeal with the utmost expedition.

4. According to an affidavit of the appellant's solicitor, he had briefed Mr Hulme QC to conduct the appeal. Mr Hulme, it was said, required at least six weeks' notice of the hearing date of the appeal. The solicitor says that he was assured by the Listing Master's office that the appeal would be listed in a call over on 9 December 1992 and be fixed for hearing no earlier than February 1993. However, in October and November, the judges of the Supreme Court conducted what was called in evidence "the Spring Offensive". This Court was told that this meant that the Supreme Court "devoted itself to getting rid of as many civil cases as they possibly could in the space of about two months".

5. On or about 13 November 1992, according to the appellant's solicitor, the Listing Master's office asked "if we were prepared to have this matter listed". However, the respondents claim that the parties had been advised prior to 13 November 1992 that the matter was listed for hearing on 30 November 1992 and that one week had been set aside. Whichever version be correct, on 13 November 1992 the appellant's solicitor asked the Listing Master to list the appeal for hearing in February 1993. By letter dated 16 November 1992, the Listing Master refused the application. He said that it had not been possible "to find another appeal to replace this appeal on the 30th November and if your appeal did not proceed on that date the Court would be left without work for 3 days". The letter concluded with the statement that the Full Court "will expect you to be ready to proceed on the 30th November". The affidavit of the appellant's solicitor states that it was on 21 November 1992 that the Listing
Master "formally informed us that the matter was fixed for
30th November 1992 and had to proceed on that date". Because 21 November 1992 was a Saturday, it seems unlikely that this date can be correct, particularly since the solicitors for the first respondent received a copy of the letter on 18 November 1992. Whatever be the correct date, the appellant's solicitor knew no later than 21 November that Mr Hulme was definitely not available for the hearing of the appeal on 30 November 1992. The solicitor's affidavit states:

"5. I then immediately caused extensive enquiries to be made for an appropriate Queen's Counsel. 6. After approaching all the barristers' clerks and some
twenty-five Queen's Counsel we were unable to secure the services of Counsel. Peter Murdoch QC said
he was prepared to take this matter on and make any
necessary applications on Monday but could not commence
preparation before Sunday 29th November 1992 as he was involved in another Full Court matter. 7. I immediately informed both solicitors for the Respondents by facsimiles marked "URGENT". 8. I now humbly request that this matter be adjourned for
a week or so to enable Murdoch to prepare. I emphasize that the Supreme Court 'Spring Offensive' has been
excellent in expediting matters, but has placed
substantial time pressures on Senior Counsel and has
made it extremely difficult to organise appropriate
Counsel with adequate preparation.
9. As a solicitor of over twenty-three years standing I
have always diligently complied with this Honourable Court's listing procedures but the current situation
has placed me and my client in an impossible
situation."

6. The facsimile transmission to which the appellant's solicitor referred was dated 26 November 1992. The terms of the facsimile are inconsistent with the statements in pars 6 and 8 of the affidavit.
The relevant part of the facsimile stated:
"Peter Murdoch QC has had to withdraw because his Full
Court matter could be part-heard on 30th November 1992. In the circumstances we shall apply for an adjournment for sometime in December to allow us to proceed. The application will be made to the Full Court tomorrow morning."

7. No application was made to the Full Court on the following morning. Counsel for the appellant informed us that this was because the associate to Mr Justice Marks, who was presiding in the Full Court, informed the solicitors for the appellant that it would be dealt with on Monday, 30 November 1992. Although counsel for the respondents were present in the Full Court's Motion List on Friday, 27 November 1992, and waiting for the application to be made, they were apparently not informed that the application would not proceed that day.

8. On 30 November 1992, a junior counsel, who was not briefed in the appeal, applied for an adjournment of the appeal. A full transcript of the application was not taken, but a solicitor acting for the second respondent has filed an affidavit in this Court providing an outline of what occurred. According to this, Mr Jones, the junior counsel who made the application, said that he was instructed to apply for a two-week adjournment and that he wished to rely upon an affidavit from the appellant's solicitor. Mr Justice Marks asked why the Court should look at the affidavit. He said the appellant had had many warnings concerning the hearing date; his Honour's associate had contacted the solicitors for each party on several occasions to ensure that they were ready to proceed. Mr Jones then read the affidavit of the appellant's solicitor, although it was not formally filed. In answer to a question whether junior counsel had been briefed in the appeal, Mr Jones said that junior counsel had been briefed but he was otherwise engaged "today". Mr Jones said "that Mr Murdoch QC had all the papers and a conference had been held with him". The Court invited Mr Jones to make any other application that he wished to make. He said there was nothing that he wished to add. In opposition to the application, the solicitor for the first respondent had filed an affidavit which set out the history of the matter since the lodging of the appeal and annexed copies of correspondence including the facsimile transmission. A solicitor employed by the solicitors for the second respondent filed an affidavit in which she deposed that on 27 November she had spoken to four barristers' clerks "regarding the availability of Queen's Counsel to appear on an appeal to the Full Court of the Supreme Court of Victoria on 30 November 1992". She was informed that these clerks had a total of 29 Queen's Counsel available. The Court refused the application for an adjournment for two weeks.

9. After that application was refused, Mr Jones made a further application. He said:
"I am instructed to make a further application, having
regard to the matters put before the Court today as to the availability of counsel. I am instructed that my instructor will endeavour this morning to obtain the services of senior counsel, if the matter could be adjourned until 2.15 to enable him to advise the Court that such counsel has been obtained and then for the matter to proceed tomorrow." The reference to "the matters put before the Court today as to the availability of counsel" was obviously a reference to the 29 Queen's Counsel who were said to be available. Counsel for the respondents opposed the application. The Court then refused it.

10. In Maxwell v. Keun ((1) (1928) 1 KB 645, at pp.650, 657, 658.), the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions
((2) See, for example, Walker v. Walker (1967) 1 WLR 327, at p.330; Carryer v. Kelly (1969) 90 WN (Pt 1) (N.S.W.) 566, at p.569;
Bloch v. Bloch (1981) 55 ALJR 701, at p.703; 37 ALR 55, at pp.58-59.). Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action ((3) Walker (1967) 1 WLR, at p.330; Carryer (1969) 90 WN (Pt 1) (N.S.W.), at p.569.). However, both propositions were formulated when court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become.

11. In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. As Deane J pointed out in Squire v. Rogers ((4) (1979) 27 ALR 330, at p.337.) this "may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing". What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.

12. Counsel for the appellant recognised the heavy burden involved in setting aside the orders of the Full Court refusing to adjourn the hearing of the appeal. But he contended that the learned judges had acted on a wrong principle, on irrelevant matters, and on mistaken facts. Furthermore, he contended that both refusals of an adjournment resulted in an injustice to the appellant because they had the inevitable consequence of depriving him of his right of appeal.

13. In his judgment, Marks J noted that the appeal had been fixed for a period of two or three days and that the Court had not fixed any other case to be heard that week. He said that the only basis for the adjournment was the "inability on the part of the appellant to obtain the services of senior counsel". He said that it was not apparent on the face of the judgment of the trial judge that the appeal would require lengthy preparation to present the argument. The appellant had had much longer than a weekend to ensure that counsel would be available to argue the appeal. His Honour referred to the attempt to re-fix the hearing in February and that senior counsel had required "three months' notice of an engagement". His Honour said that "(w)e have no reason to believe that that is a universal practice or rule adopted by other members of the Bar." Marks J said that it was a long-standing practice of the Court that, while it would do its best to meet the convenience of counsel, it would not delay access to the courts by other litigants by putting off hearings in the way the Court was asked to do in this case. His Honour said that the background of
the case strongly suggested that:

"the appellant is in a financially embarrassed position, that he is conducting this appeal in a way which could possibly stave off the proceedings for sequestration of his estate in the Federal Court. There is, therefore, a tactic of delay which seems to me to be used by the appellant".

His Honour said that the prima facie tenuousness of the appeal confirmed "in some minor way" his impression that the appellant did
not want the appeal to go on.

14. In this Court, counsel for the appellant submitted that the judgment of Marks J proceeded on the mistaken factual assumption that the basis of the application was that senior counsel retained on the appeal required three months' notice of an engagement and that his Honour wrongly assumed that the appellant had not endeavoured to obtain other counsel. There is no substance in these submissions. Nothing in the judgment gives any support for the submission and, shortly before giving judgment, the affidavit of the appellant's solicitor had been read to the Court. Then it was said that Marks J had wrongly inferred that the application for adjournment was designed to stave off proceedings for sequestration of the appellant's estate, that the application was a tactic of delay, and that the appellant did not want the appeal to go on at all.

15. In our opinion, it was clearly open to Marks J to draw these conclusions. There was a striking inconsistency between par.6 of the affidavit of the appellant's solicitor and the terms of the facsimile transmission to the respondents' solicitors. The inconsistency was not explained. Further, par.8 of the affidavit asked that the matter be adjourned for "a week or so" to enable Mr Murdoch QC to prepare, yet Mr Jones said that he was instructed to apply for a two-week adjournment. Moreover, although par.6 of the affidavit asserted that Mr Murdoch would "make any necessary applications on Monday", he did not do so. No explanation was proffered as to why he was not available to make the application. Junior counsel had been briefed for the appeal but he was said to be engaged in another matter on 30 November 1992. No explanation was given as to why another junior counsel had not been briefed in the appeal. The papers in the matter had been left with Mr Murdoch. A junior counsel, who knew nothing about the appeal, had been briefed to apply for an adjournment. In the absence of an adequate explanation for the absence of counsel briefed in the appeal, Marks J was entitled to infer that the appellant had briefed counsel who could not be called on to conduct the appeal if the adjournment was refused. Contrary to the suggestion contained in pars 5 and 6 of the solicitor's affidavit that the appellant had made the effort to obtain senior and junior counsel which his undertaking required him to do, the affidavit in reply disclosed that 29 Queen's Counsel were available to conduct the appeal. Yet the appellant offered no explanation of that fact nor was any attempt made to show that those counsel were not "appropriate".
No details were given as to the criteria for determining "an appropriate Queen's Counsel". The affidavit of the appellant's solicitor was extremely vague concerning the attempts to obtain senior counsel. Having regard to the grounds of appeal, the prospects of success in the appeal were doubtful and the failure of the appeal might well mean the bankruptcy of the appellant. Upon these facts, it was clearly open to his Honour to reach the conclusions which he did.

16. Tadgell J said that he sympathised with counsel for the applicant "who has been obliged to fashion submissions based upon instructions which to me smack of humbug". His Honour also said that he was quite unable to accept the submission that it had been impossible to obtain the services of counsel for the purposes of arguing the appeal that morning. His Honour was of the view that the appeal was of a kind that "could be worked up by counsel in two or three days". For the reasons we have already given, it was open to Tadgell J to conclude that counsel's instructions smacked "of humbug".

17. Harper J agreed generally with the reasons of Marks J and Tadgell J His Honour also said that it was impossible to reconcile the undertaking given by the appellant to prosecute the appeal with the utmost expedition with the material upon which the application had been based.

18. Counsel for the appellant also submitted that the two decisions of the Full Court resulted in gross injustice to the appellant because the effect of the orders "was to determine the appeal against the Appellant without a hearing and is likely to lead to his bankruptcy". Counsel contended that, if either the first or second application had been granted, it may have been possible to retain counsel to argue the appeal the next day so as not to further inconvenience the Court or prejudice the respondents. Furthermore, the respondents' position as to costs could have been protected by an appropriate order including an order against the solicitors.

19. Having regard to the findings of the Full Court, the appellant suffered no injustice when the Court refused to adjourn the hearing
for two weeks. It is true that it is only in extraordinary circumstances that the interests of justice will be served by a refusal of an adjournment in a case such as the present where the practical effect of the refusal is to terminate the proceedings. The members of the Full Court were, however, conscious of that fact. Thus, Tadgell J commented that it was, in his experience, "unique"
that the Full Court had had to refuse "an application for an adjournment of this kind". Clearly, their Honours considered that the circumstances before them were both extraordinary and extreme. On the findings which they made, they were fully entitled to be of that view. On those findings, the appellant was the author of his own misfortune.

20. Although there is force in the argument that no injustice would have been done to the respondents by adjourning the matter until 2.15 p.m., that application had to be considered in the light of the findings of the Full Court in the first application. If the Full Court was entitled, as we think it clearly was, to regard the appellant's application as mere delaying tactics, there was no warrant for granting any adjournment. Moreover, it seems unlikely that the appeal could have commenced before the Wednesday, which was the last of the three days which had been set aside for it. It is true, as counsel for the appellant pointed out, that this was the only appeal listed for the week. But that does not mean that the judges did not have other commitments during the remainder of the week. Once the Court made the findings which it did in the first application, it cannot be said that the appellant suffered an injustice because the members of the Court refused to change the listing arrangements and alter their commitments on the chance that counsel might be obtained who could prepare, argue and finish the case before the end of the week. Indeed, in the context of the grounds advanced by the appellant as the basis of the application for an adjournment for two weeks, the suggestion that it was what had been said in the Full Court about the availability of counsel which gave rise to the application for a short adjournment would justifiably have been seen by their Honours as confirming the appropriateness of Tadgell J's earlier use of the word "humbug".

21. The appellant has failed to show error on the part of the Full Court in refusing the successive applications for an adjournment of the hearing of the appeal. The appeal must be dismissed with costs.

TOOHEY AND GAUDRON JJ A decision by a court to grant or refuse an adjournment of proceedings is a decision made in the exercise of a discretion vested in that court ((5) The relevant provision in this case was r.49.03 of the General Rules of Procedure in Civil Proceedings 1986 (Vic.) which provides that the Supreme Court may adjourn a trial on such terms as it sees fit. This power is applied to appeals by r.64.15(1). In relation to the inherent jurisdiction to adjourn proceedings see Hinckley and South Leicestershire Permanent Benefit Building Society v. Freeman (1941) Ch 32; Sydney City
Council v. Ke-Su Investments Pty. Ltd. (1985) 1 NSWLR 246,
at p.252.). It is therefore a decision which will not lightly be set aside on appeal ((6) See, for example, House v. The King (1936) 55 CLR 499; Norbis v. Norbis (1986) 161 CLR 513, at pp.518-519; Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 162 CLR 24, at pp.47-48.). Furthermore, this Court has expressed its reluctance to interfere with decisions made by courts below on procedural matters which, ordinarily, are best left to the court seized of the proceedings ((7) Adam P Brown Male Fashions Pty. Ltd. v. Philip Morris Inc. (1981) 148 CLR 170.).

2. Nevertheless, the discretion is one that must be exercised judicially. And where, as here, there has been a grant of special leave to appeal against the refusal of an adjournment, the Court cannot turn away from consideration of whether the decision refusing an adjournment evinces an appealable error or whether there has been a miscarriage of justice.

3. The appellant's claim for an amount said to be due from the first respondents by way of retirement allowance and his alternative claim in negligence for damages against the second respondent were dismissed by Ormiston J on 1 November 1991. The appellant lodged a notice of appeal, within time, against the judgment of Ormiston J As things stood until 13 November 1992 or thereabouts, the appeal was to be listed in a callover on 9 December 1992 and a hearing date fixed no earlier than February 1993. The appellant's solicitor, Mr McLindin, secured the services of Mr Hulme QC on this basis.
Mr Hulme QC was not senior counsel who had appeared for the appellant on the trial of the action.

4. In late 1992 the Supreme Court of Victoria launched a "Spring Offensive", with the aim of accelerating the disposition of civil causes pending in that Court. Pursuant to this drive Mr McLindin was asked by the Listing Master's office, on or about 13 November 1992, "if we were prepared to have this matter listed". Mr McLindin contacted Mr Hulme QC but he was only available on the original footing, that is, not before February 1993. Mr McLindin's "office" told the Listing Master of the problem and asked that the appeal be listed at that time. This approach was apparently by letter (though the appeal book contains no such document) because by letter dated 16 November 1992 the Listing Master wrote to Messrs McLindins as
follows:

" I received your letter of the 13th November. Whilst I always endeavour when fixing cases to take into account Counsels' convenience, I regret that on this occasion I cannot agree to your request to have this matter refixed. It has not been possible to find another appeal to replace this appeal on the 30th November and if your appeal did not proceed on that date the Court would be left without work for 3 days.

I have discussed the matter with the presiding Judge of No. 2 Full Court and the Court will expect you to be ready to proceed on the 30th November."

5. Mr McLindin's affidavit speaks of being "formally informed" of these matters by the Listing Master on 21 November. But as 21 November 1992 was a Saturday, the letter must have been received
no later than 20 November. Indeed, the solicitors for the first respondent received a copy of the letter on 18 November.

6. At this point the picture loses some clarity and for this the appellant must accept most of the responsibility. What follows is taken from affidavits referred to in the proceedings in the Full Court or filed for the purposes of the application for special leave to appeal to this Court, and from what was said by members of the Full Court when refusing the appellant an adjournment of his appeal. The transcript of the proceedings in the Full Court is limited to the reasons given by the members of the Court in refusing the application for a two weeks adjournment and the submissions made by counsel thereafter.

7. Much of the relevant material is contained in an affidavit sworn by Mr McLindin on 27 November 1992 which was "handed to" the Full Court by counsel for the appellant on 30 November. In that affidavit Mr McLindin deposes to the fact that on receipt of the
Listing Master's letter:

"I then immediately caused extensive enquiries to be made for an appropriate Queen's Counsel."

What is meant by "appropriate" does not appear. The only meaning that can be given to it is that the appellant sought a senior counsel practising in the area with which the appeal was concerned. Having regard to the nature of the litigation and the grounds of appeal, one would think that the range of "appropriate" counsel would have been very wide.

8. In any event Mr McLindin further deposes:
"After approaching all the barristers' clerks and some
twenty-five Queen's Counsel we were unable to secure the services of Counsel." Again the affidavit is open to criticism for its lack of specificity but, that said, it does evidence considerable efforts to obtain the services of senior counsel. Why an experienced junior counsel could not have taken the brief was not explained.

9. Mr McLindin then deposes that Mr Murdoch QC:
"said he was prepared to take this matter on and make any
necessary applications on Monday but could not commence preparation before Sunday 29th November 1992 as he was involved in another Full Court matter. I immediately informed both solicitors for the Respondents by facsimiles marked 'URGENT'." However the facsimile dated 26 November is not consistent in that it
reads:

"Peter Murdoch QC has had to withdraw because his full court matter could be part heard on 30th November 1992."

10. Nothing in the material before us indicated whether in fact a brief had been delivered to Mr Murdoch QC The facsimile concluded with the statement that an application would be made to the Full Court on the following day for an adjournment until some time in December "to allow us to proceed".

11. From what we were told in this Court by Mr Finklestein QC for the appellant (this aspect is not adverted to in Mr McLindin's
affidavit), it appears that Mr McLindin did approach the Listing Master's office with a view to having an application for an adjournment of the appeal listed on Friday, 27 November. This was a day set aside for motions. He was told that any application for an adjournment would be heard on Monday, 30 November, the day on which the appeal was listed for hearing.

12. The solicitors for the second respondent filed in the Full Court on 27 November an affidavit by an employee, Ms Hibberd, who deposed that on that day she had spoken to "four barristers' clerks regarding the availability of Queen's Counsel to appear on an appeal to the Full Court ... on the 30 November 1992". She was told that one clerk had 10 senior counsel available; another, 8; another, 6; and the fourth, 5.

13. On Monday, 30 November junior counsel, Mr Jones, appeared before the Full Court (Marks, Tadgell and Harper JJ), instructed to appear on behalf of the appellant for the purpose only of seeking an adjournment of the appeal. As mentioned earlier, there is no transcript of the submissions made in support of and in opposition to an adjournment. There is however an affidavit sworn by Ms Hibberd in opposition to the application for special leave to appeal. In that affidavit Ms Hibberd, having been present in the Full Court that morning, deposes to what then took place. Mr Jones said that he was instructed to apply for a two weeks adjournment and that he wished to rely upon the affidavit of Mr McLindin to which reference has already been made. Ms Hibberd then deposes to some discussion between Mr Jones and Marks J, the presiding judge, as to whether the Court should look at the affidavit which had not been filed and was merely handed to the Full Court by Mr Jones. Whatever the precise status of the affidavit, it is at least clear that their Honours were made aware of its contents.

14. According to Ms Hibberd's affidavit Marks J asked Mr Jones a number of questions relating to the non-appearance of either senior or junior counsel for the appellant. It appears that Mr Jones told the Full Court that junior counsel for the appellant at the trial, Mr Bean, had been retained for the appeal but was otherwise engaged on that day. Counsel for each of the respondents opposed the application for an adjournment.

15. The members of the Full Court then disposed of the application which, at that stage, must be treated as having been an application to adjourn the hearing of the appeal for about two weeks. Marks J dealt with the history of the litigation, making particular reference to a bankruptcy notice from the first respondent in respect of the costs of the trial, a stay of sequestration proceedings granted on 13 April 1992 for three months and an undertaking thereafter by the respondents not to prosecute the sequestration proceedings until the appeal was determined, the appellant undertaking in turn "to prosecute the appeal with the utmost expedition".

16. We shall not detail the reasons which led to Marks J refusing the application because, speaking generally, there can be no complaint about those reasons so far as the application then before the Court was concerned.

17. Tadgell J took a more robust view, describing Mr Jones' submission as based upon instructions "which to me smack of humbug" and to the Court being "ill-used today by having had made to it the submissions which counsel for the applicant has been instructed to make".

18. Harper J agreed with the reasons of Marks J and Tadgell J, adding that it was "impossible to reconcile the undertaking given by the appellant to prosecute the appeal with the utmost expedition with the material upon which the application has been based".

19. Subject to what follows, the reasons expressed by their Honours in refusing an adjournment for two weeks cannot legitimately be the subject of attack. However, underlying the refusal is a rejection of the explanation offered in Mr McLindin's affidavit. While the account of his efforts to obtain senior counsel seems at odds with the picture presented by Ms Hibberd, the two are not irreconcilable. In any event, there was no application to cross-examine Mr McLindin on his affidavit. It is one thing to treat the contents of that affidavit as inadequate justification for an adjournment. It is another thing, and unwarranted in the circumstances, to reject the explanation which it contains ((8) See Smith v. N.S.W. Bar Association (1992) 176 CLR 256, at pp.267-269.). And to describe the contents as "humbug" can only, given the general and judicial understanding of the term ((9) "'Humbug' is an imposition, imposture, deception; and as a verb, signifies to impose upon, to cozen, to swindle; all implying intention to misrepresent, by the assertion of what is not the actual condition or the suppression or concealment of what is": Nolte v. Herter (1895) 65 Ill App 430, at pp.432-433, adopted in McDonald v. Sun Printing and
Publishing Ass'n (1906) 98 NYS 116, at p.117.), be taken to mean an attempt to deceive the Full Court. That was not a conclusion open on the evidence.

20. This aspect assumes particular importance because of what followed. On refusal of his original application, Mr Jones made a
further application in these terms:

"I am instructed that my instructor will endeavour this morning to obtain the services of senior counsel, if the matter could be adjourned until 2.15 to enable him to advise the Court that such counsel has been obtained and then for the matter to proceed tomorrow."

Counsel for each respondent opposed that application and Marks J said: "The application is refused." The appeal was called on. As Mr Jones had no instructions to proceed further, there was no appearance for the appellant and the appeal was dismissed with costs. The appellant thereby lost his right of appeal.

21. In Carryer v. Kelly ((10) (1969) 90 WN(Pt 1)(N.S.W.) 566, at p.569.) Asprey JA. said of a refusal to grant an adjournment of a civil action until later in the day, because of the unavailability of
counsel:

"An adjournment which, if refused, would result in a serious injustice to the party applying for it should only be refused if that is the only way that justice can be done to the other party".

22. While not referring expressly to Carryer v. Kelly, Kirby P said much the same in Sydney City Council v. Ke-Su Investments Pty. Ltd. ((11) (1985) 1 NSWLR 246.). Although in dissent as to the outcome in the case before the Court of Appeal, the President said of an application for an adjournment ( (12) ibid., at p.252.) :

"If not granted, although appeal courts will rarely intervene to review the refusal of an adjournment, they will do so if the discretion had not been exercised judicially or where its exercise was based upon the wrong principle or resulted in gross injustice".

23. The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales ((13) See GSA Industries Pty. Ltd. v. NT Gas Ltd. (1990) 24 NSWLR 710. For the implications of this aspect for the amendment of pleadings, see Ketteman v. Hansel Properties Ltd. (1987) AC 189; The Commonwealth v. Verwayen (1990) 170 CLR 394.) . The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard. Because these considerations are singularly within the knowledge of the court to which an application for an adjournment is made, there is an added reason why this Court should not interfere with a decision made on such an application.

24. Having regard to these matters, it is clear that the Full Court's decision to refuse an adjournment for two weeks was correct. Nevertheless, in our respectful view, the Full Court was in error in refusing the application to stand the matter down until 2.15 p.m. Marks J said that the Court had allocated two or three days for the hearing of the appeal and "did not fix any other case to be heard this week". Thus, if it had proved possible for the appellant to engage counsel, senior or junior, with a view to the appeal starting on Tuesday or Wednesday, there would have been no implications for other appeals waiting to be heard. There would have been some inconvenience to the respondents but their position could have been secured by a peremptory order for the payment of security for costs, past and future. There would have been some inconvenience for the members of the Court as there always is when a matter is adjourned, albeit briefly.

25. But in the end the principle enunciated in Carryer v. Kelly holds good. The refusal to stand the appeal down until 2.15 p.m. was only warranted on the basis that the application to do so was no more than a ploy. There was insufficient material before the Full Court to support that conclusion. Nothing would have been gained by the appellant from the brief adjournment, other than an opportunity to secure counsel or to appear in person. The result was a serious injustice to the appellant. On the other hand, that was not the only way in which justice could be done to the respondents.

26. We reach this conclusion with reluctance given the history of the matter but in our view the Full Court did not give effect to the appropriate principle and a miscarriage of justice ensued. The appeal should be allowed, the orders of the Full Court refusing the application for an adjournment until 2.15 p.m. and dismissing the appeal should be set aside and the matter relisted for hearing before that Court.