Commonwealth of Australia v Halleur [1999] VSCA 225

Court of Appeal (Vic)|1999-12-14|Before: WINNEKE, P., BROOKING and BUCHANAN, JJ.A.

Practice and Procedure - Application for leave to appeal against judge's order refusing defendant's application for adjournment of trial - Application treated as the appeal - Relevant unfairness to the defendant - Application and appeal allowed.

WINNEKE, P. (delivering the judgment of the Court):

The trial is brought by the respondent to this application, Kerry Ann Halleur, who is gravely ill, suffering from mesothelioma. Her action is brought against the Commonwealth of Australia seeking damages as a result of the Commonwealth's alleged negligence in exposing her to asbestos dust in the course of her employment in the Commonwealth's Spring Street building in or about 1980 and the years following.

As I have said, the plaintiff is gravely ill and is not expected to live beyond a matter of some two weeks, according to what we have been told by counsel. Difficulties have arisen because the writ in the action was filed and served last Thursday, so that a period of only some three days or so has existed for the purpose of the Commonwealth gathering instructions in order to properly defend the claim, and which is expected to put in issue allegations of both liability and damages. The case, therefore, will probably proceed for some time.

In our view, the time frame which the judge's order permits to the Commonwealth to get proper instructions to defend itself is so short that it cannot reasonably be argued that the defendant could get a fair trial of an action of this nature. It is clearly necessary, notwithstanding that we have sympathy for the position of the plaintiff, that justice be done to both sides in an action of this sort, and the defendant, no matter how large or how deep-pocketed, is entitled to have some reasonable time to investigate the circumstances in which it is alleged that exposure of the plaintiff to asbestos has occurred. In failing to recognise that, it is our view that his Honour's discretion has miscarried.

We think that the suggestion which the defendant put to Coldrey, J. that the matter be adjourned until 10 January of next year is an appropriate one. To enable that to be done, we will grant leave to appeal, treat the application as the hearing of the appeal and allow the appeal.

We order that his Honour's order refusing the adjournment be set aside and we direct that the trial be adjourned until 10 January of next year for commencement or further order.

The costs of this application are to be costs in the cause.

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