WRIGHT J This is an appeal pursuant to the Local Courts Act 1896, s123 in respect of a judgment of the Court of Requests on 26 July 1993 whereby the respondent recovered judgment against the appellants for $3,982 and costs, and the appellants' counterclaim against the respondent was dismissed.

2. On the case being called on for hearing, counsel for the appellants applied to adjourn the trial. Neither the appellants nor their witnesses were present in court. Counsel for the respondent, who was ready and anxious to proceed, opposed the adjournment application. The learned Commissioner refused the application, counsel for the appellants withdrew and the case proceeded to judgment on the uncontested evidence of the respondent and his witnesses.

3. For a case involving a comparatively small amount of money this matter has had a very protracted and unsatisfactory history. The respondent instituted proceedings against the appellants in the Supreme Court on 1 August 1990, claiming that, as principal contractor for the Motor Yacht Club of Tasmania to perform certain work at the clubrooms at 1 Ford Parade Lindisfarne, he engaged the appellants to construct and finish a parquetry floor. He alleged that they did so incompetently and that he was put to expense to rectify their faulty workmanship. The claim was defended and the appellants counterclaimed for the unpaid sum for which they had agreed to perform the work. There were lengthy interlocutory steps, and pre-trial procedures requiring several attendances took place between October 1992 and March 1993. On 15 March 1993 by consent the action was transferred to the Court of Requests pursuant to the Supreme Court Civil Procedure Act 1932, ss28 and 184. One of the grounds of the current appeal was that the matter had not been properly transferred to the lower court but this was only faintly argued and in my opinion was without substance. I gave brief reasons for rejecting that ground when I reserved my decision on the appeal generally on 8 December 1993 and there is no need to add to what I said on that occasion.

4. The three principal grounds of appeal were based on the proposition that the learned Commissioner erred in fact and in law in refusing the appellants' adjournment application. The material presented to me on the hearing of the appeal, whilst voluminous, was unsatisfactory in a number of respects. Although the application to the learned Commissioner was recorded, the audio tape was found to be defective and no transcript of the proceedings during the adjournment application was available. The learned Commissioner's own handwritten notes relating to this aspect of the case did not throw any light on the nature of the appellants' application. However, there were two affidavits by the appellants' counsel, Ms Chen, in which she deposed to her conversation with and instructions from the female appellant and the steps which she took to secure the adjournment before the learned Commissioner.

5. Briefly the relevant facts were as follows. At about 4 or 4.30pm on Friday 23 July, Ms Chen received a telephone call at the offices of Page Seager where she is employed. The female appellant requested Ms Chen to appear for her in the Court of Requests on Monday 26 July 1993 to seek an adjournment. She also told Ms Chen that Mr John Avery, a solicitor, had been acting for her in respect of an action in which she was being sued by a builder "who had subcontracted her to sand a floor at the Lindisfarne Yacht Club" but that Mr Avery was refusing to appear for her on Monday 26 July due to a dispute with her as to payment of his costs. The female appellant also advised Ms Chen that she was a floor sander by trade and that she and her husband had engaged Mr Avery to act on their behalf in 1990. She and her husband had now separated and she told Ms Chen that she was disputing Mr Avery's account for costs because she was being held liable for the whole amount whereas she believed that her husband should pay one half; furthermore she said that she believed she was being charged in advance for work not yet performed by Mr Avery. Ms Chen's first affidavit continued as follows:

"5 Mrs Hanlon advised me that a Mr Mathys of Clerk Walker

and Stops, Solicitors, was acting for the plaintiff,

Ridgeway.

6 Mrs Hanlon instructed me that the matter before the

Court on the 26th July 1993 had not been adjourned on any

previous occasions.

7 I was advised by Mrs Hanlon that she was travelling to

Melbourne from Hobart on the evening of Friday the 23rd

July and would not be returning until 4.00 pm on Monday

the 26th July 1993. I have subsequently been advised by

her that the reason for her journey to Melbourne on the

23rd July was to have some of her sanding equipment

repaired.

8 I advised Mrs Hanlon that I would appear on her behalf

to apply for an adjournment on Monday the 26th July.

9 On the 26th July 1993, having spoken to Mrs Hanlon and

obtained her instructions, I telephoned Mr Mathys at

Clerk Walker and Stops, Solicitors. I advised Mr Mathys

that I would be seeking an adjournment of the matter to

be heard on the 26th July and Mr Mathys informed me that

he wanted the matter to proceed and would be opposing the

adjournment.

10 It was not until I spoke with Mr Mathys of Clerk

Walker and Stops, Solicitors, on the 26th July 1993 that

I became aware that the matter was listed for hearing on

that day. Up until that time I had believed that the

matter had been listed for mention only. I had believed

that the matter had only been listed for mention as Mrs

Hanlon had advised me that the matter had not been

adjourned on any previous occasions and I knew that Mrs

Hanlon would not be present in Court on Monday the 26th

July 1993. I was unable to contact Mrs Hanlon at that

time as she was still in Melbourne.

11 On Monday the 26th July 1993 I appeared before a

Commissioner in the Court of Requests, Mr Matterson, and

made application that the matter be adjourned. I advised

Commissioner Matterson that the Defendant had telephoned

our office late in the afternoon on Friday the 23rd July

requesting that we appear for her and seek an adjournment

on her behalf.

12 I further advised the Court that I had been informed

by the Defendant that she had a solicitor on record but

that her solicitor was not willing to appear for her that

day. I advised that when Mrs Hanlon had spoken to me on

the afternoon of Friday the 23rd July she was apparently

unaware of the nature of the proceedings which had been

listed for the 26th July 1993 and she had simply advised

me that she wanted an adjournment. I submitted that I

had contacted the Plaintiff's solicitor on the morning of

the 26th July 1993 and had been informed that the matter

was set down for hearing and that it was only then that I

had first learned that the matter had been listed for

hearing.

13 I advised the Commissioner that the Defendant was

presently out of the jurisdiction but would be returning

that evening. I advised that my brief instructions

indicated that it was the first time that the matter had

been before the Court and that the ambit of my

instructions was simply to seek an adjournment.

14 I submitted that on my understanding there had been a

breakdown in communication between the Defendant and her

solicitor effectively leaving her without legal

representation and I made submissions that the Plaintiff

would not be prejudiced if the matter was adjourned.

15 Mr Matterson refused the adjournment.

16 I then withdrew from the matter and returned to my

office."

6. Ms Chen's second affidavit repeated much of what had been said in her first affidavit but also contained the following additional material:

"8 Mr Mathys, the Solicitor appearing for the Plaintiff,

opposed my application for an adjournment and advised the

Commissioner that the matter had been before the Supreme

Court on seven (7) previous occasions. Mr Mathys made

further submissions to the effect that the Defendant was

employing delaying tactics to prevent the matter being

heard.

9 The Commissioner advised me that his Court file was

several inches thick and he expressed the view that he

thought that I was being exploited by the Defendant in an

attempt to delay the matter proceeding that day."

7. Mr Mathys who appeared for the respondent both before the learned Commissioner on 26 July 1993 and on the appeal, filed an affidavit regarding these matters but did not seek to read it. Ms Chen's affidavits were essentially unchallenged.

8. Counsel for the appellants on this appeal, Mr Spence, also referred me to a transcript of the proceedings which took place on the trial of the action after Ms Chen had withdrawn. The audio tapes were apparently not malfunctioning at that time. Mr Spence sought to persuade me that the learned Commissioner's remarks upon being referred to the Statement of Claim by Mr Mathys, indicated that he had formed a view that the appellants had been seeking to delay proceedings from what he had seen of the file when perusing it the previous day at his home. In my opinion no such inference can or should be drawn from the learned Commissioner's comment.

9. Mr Spence accepted that the learned Commissioner had a discretion to exercise when deciding whether or not to grant the adjournment and he did not shrink from acknowledging the principles which apply when it is sought to challenge a decision involving a discretionary judgment on appeal. (See Australian Coal and Shale Employees Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 per Kitto J at 627 and House v The King [1950] HCA 52; (1950) 81 CLR 513 at 532-534). However he submitted that in the case of an appeal against a refusal to grant an adjournment which has resulted in a trial taking place in which the party making the unsuccessful application has been effectively precluded from taking part, special principles apply. This, he submitted, is particularly the case where an application to adjourn is refused either peremptorily or with a short or inadequate explanation.

10. The earliest case in which these principles found expression was Maxwell v Keun (1928) 1 KB 645 at 653 where Atkin LJ said:

"The other point that was made by the defendants was that

this was a discretionary order, and that the Court of

Appeal ought not to interfere with the discretion of the

learned judge. I quite agree the Court of Appeal ought

to be very slow indeed to interfere with the discretion

of the learned judge on such a question as an adjournment

of a trial, and it very seldom does do so; but, on the

other hand, if it appears that the result of the order

made below is to defeat the rights of the parties

altogether, and to do that which the Court of Appeal is

satisfied would be an injustice to one or other of the

parties, then the Court has power to review such an

order, and it is, to my mind, its duty to do so."

and at 657:

"... in the exercise of a proper judicial discretion no

judge ought to make such an order as would defeat the

rights of a party and destroy them altogether, unless he

is satisfied that he has been guilty of such conduct that

justice can only properly be done to the other party by

coming to that conclusion."

11. The first of these propositions received specific endorsement by the High Court of Australia in Bloch v Bloch [1981] HCA 56; (1981) 37 ALR 55 at 58, 59.

12. In Walker v Walker (1967) 1 WLR 327, Sir Jocelyn Simon P restated the principles thus at 330:

"First, where the refusal of an adjournment would result

in a serious injustice to the party requesting the

adjournment, the adjournment should only be refused if

that is the only way that justice can be done to the

other party; and, secondly, that although the granting or

refusal of an adjournment is a matter of discretion, if

an appellate court is satisfied that the discretion has

been exercised in such a way as would result in an

injustice to one of the parties, such appellate court has

both the power and the duty to review the exercise of the

discretion."

13. The abovementioned cases were considered by Kaye J in McColl v Lehman [1987] VicRp 46; (1987) VR 503. His Honour emphasized that it is essential to the fair trial of an action that all parties are able to present their case as fully as necessary and that to overcome an injustice caused by a refusal to adjourn to allow this course to occur. Accordingly, he said, an appellate court will interfere with the trial judge's discretion even though on the face of it there is nothing to suggest that such discretion was wrongly exercised on the material then available.

14. The Full Court of Tasmania has also acted in accordance with these same general principles in Su v Davern and Ors 66/1983 at 7-12. It is noteworthy that the Full Court reversed the learned trial judge's decision to refuse an adjournment but on the narrow ground that the appellant was under summons to present himself for jury service in Adelaide and thus had a very real dilemma which in the circumstances justified his absence from Tasmania. However it is not the outcome of the appeal in that case which is of significance but rather the recognition that a trial judge may have strong reason for suspecting the motives of an absent litigant but may not have sufficient material to make a positive adverse finding on the material which is typically presented on an adjournment application, particularly one in which counsel for the applicant is without comprehensive instructions, as in the present case.

15. In Rosing v Ben Shemesh [1960] VicRp 28; (1960) VR 173, a case not of refusal of an adjournment, but of a judge at first instance refusing to set aside a judgment obtained at trial in the absence of the defendant, his Honour concluded his remarks by saying:

"This application has all the earmarks of one designed

simply to delay justice which may result in its denial

and there is nothing that satisfies me that there is a

bona fide issue to be tried."

16. In reviewing this decision the Full Court of Victoria said at 175-176:

"We can understand the learned judge being suspicious,

but suspicions may be ill-founded, and whether the

judge's suspicions were well or ill-founded could not be

determined without hearing the defendant cross-examined."

17. Mr Spence submitted that if it could be shown that the learned Commissioner's discretion miscarried and that he should have granted the adjournment the judgment which he entered must be set aside and the matter must go back for a new trial.

18. However, it seems to me that this does not necessarily follow if, as in the present case, evidence has been presented before the appellate tribunal which sheds light upon the behaviour and conduct of the party seeking the orders which enables that tribunal to form an independent assessment of the merits of the applicant's adjournment application. The essence of the Maxwell v Keun principle is that the appellate court must be satisfied that an injustice has been done to the party who sought the adjournment and it seems to me that in approaching this question it must be relevant to consider, (1) the reasons why the party seeking the adjournment was not present or was not ready to proceed, (2) whether that party had already delayed the proceedings without justification, (3) whether that party had taken steps promptly to institute and prosecute his appeal and (4) whether or not the other party would be prejudiced in any respect which could not be adequately compensated by a suitable award of costs, the giving of security and the like. In short, an approach similar to that required by the Full Court of Victoria in Rosing v Ben Shemesh (supra) is appropriate.

19. It has not been suggested that what Mr Mathys said to the learned Commissioner in opposing the adjournment was wrong or inaccurate, but it is submitted that the learned Commissioner drew the impermissible inference therefrom or from material he may have seen on the court file, that the female appellant was improperly trying to prevent the matter proceeding on 26 July simply to delay the matter to the maximum extent possible. It was submitted that whilst the learned Commissioner may have been justified in suspecting that such was her motive, he could not be affirmatively satisfied of that and should have adjourned the case as requested.

20. I am not persuaded that the learned Commissioner erred in reaching the conclusion that the delay sought was unmeritorious. The reasons for the appellant's unreadiness for trial were not really explained to the learned Commissioner by Ms Chen. Indeed, it is plain that she herself did not fully appreciate the nature of the matter or the nature of her client's difficulties. She did not and indeed could not suggest that her client's absence was unavoidable. Mrs Hanlon's affidavit evidence disclosed no reason why it was necessary for her to go to Melbourne to have machinery repaired. There was no suggestion that such an excursion was urgent or could not be postponed. She knew a hearing was to take place on 26 July and she chose to be absent.

21. Whilst Ms Chen said all that could possibly have been said on her client's behalf in support of the application, she did not really provide the learned Commissioner with a proper basis for adjourning the case in the face of the opposition of the respondent, regardless of Mrs Hanlon's true motive in seeking the adjournment.

22. It seems to me that when a case has been listed for trial, the solicitors on the record have been notified and their clients have been contacted and made aware that a date has been set by the Court for the hearing, some positive reason will normally be required to justify a postponement. There would be no injustice to a party who assumed that he or she was entitled to an adjournment as of right and acted accordingly, if the matter were to be forced on for hearing in the absence of a reasonable explanation for an inability to proceed. In my opinion the material placed before the learned Commissioner did not amount to such a reasonable explanation.

23. Can it be said that, nonetheless, on the affidavit material now read without objection on the current appeal, it is manifest that an injustice has been done to the appellants?

24. In the first place I think I should say that I am quite unimpressed by the female appellant's assertion that she was unaware from the communications she had had with Mr Avery that the trial of the action was to take place on 26 July. At the very least she knew that it was an important step in the litigious process and that her presence was required but I am satisfied on the balance of probabilities that she knew or suspected that the trial would take place on that day. I think it highly likely that she found it inconvenient to pay Mr Avery the fees which he required to undertake the trial and she was disinclined to postpone her trip to Melbourne although it seems likely that she had plenty of time to do so.

25. However it cannot be said that she considers her case to be unmeritorious. Plainly her defence and counterclaim and, indeed, her persistence with the present proceedings in the face of clear evidence that the costs are likely to outweigh the sum in issue for the successful party, tend to suggest the contrary. There is no suggestion that she is impecunious or unable to pay the amount of any judgment debt if the case goes against her. Indeed she has paid into Court the amount awarded against her by the learned Commissioner as a condition precedent to her proceeding with this appeal out of time in accordance with an order made by Zeeman J on 30 August 1993.

26. The respondent's position cannot be left out of account of course. He is an elderly man in poor health. The protracted nature of these proceedings has added considerably to his stress and anxiety. He sees the case as reflecting upon his competence as a builder and he has noticed that the amount of work he gets from members of the Motor Yacht Club of Tasmania, of which he is a member, has declined since this case became a matter of common knowledge within the Club.

27. I have every sympathy with the respondent and none at all for the appellants. But the case cannot be decided by an emotive reaction to the litigants.

28. It is plain that the female appellant's ongoing dispute with her solicitor Mr Avery as to payment of his costs played a substantial part in the events which have occurred. The rights and wrongs of that dispute are not for me to determine but it is clear that Mrs Hanlon was placed in something of a quandary when she was advised that the case was proceeding to trial but that her solicitor would not appear on her behalf unless substantial fees were paid in advance.

29. That she was dilatory and unbusiness like in dealing with the problem cannot be disputed but it is reasonable to say that her predicament was not entirely of her own making. She compounded an already difficult situation by either arranging or failing to change arrangements to go to Melbourne on the very day of the trial. Perhaps she thought that her need to brief other solicitors would be obvious to the presiding Commissioner. If she did she was taking far too much for granted but it may be that it was foolishness rather than an arrogant disregard for her litigious opponent's rights which prompted her to act in this way.

30. The essential question which I must ask myself is whether the appellant's desire to have the issues tried in proceedings in which she has full participation can be achieved without injustice to Mr Ridgeway. There is no suggestion that his witnesses will be unavailable for a retrial. Nor, apart from the matters I have already adverted to, is it suggested that he will be prejudiced. In a sense he will have an advantage which he would not have enjoyed had the first trial proceeded in the normal way, as Mrs Hanlon has now set out her case in some detail in the affidavits which she filed in support of this appeal.

31. After very anxious consideration of the whole matter I have concluded that any prejudice to Mr Ridgeway can be substantially ameliorated by a suitable award of costs and an order that the sum currently paid into court by Mrs Hanlon, pending the resolution of this appeal, be retained by the Court of Requests as security for any judgment which the respondent may recover from the appellants upon a retrial. The costs which the appellant should be required to pay will include the respondent's costs thrown away on 26 July 1993 and the costs of this appeal. I am conscious that in their letter to the respondent's solicitors on 20 August 1993, Page Seager indicated that if it was necessary for them to take steps to appeal they would seek an order for costs against the respondent if their clients were successful, but it seems to me that the substance of this appeal is very closely akin to an application to set aside an ex parte judgment or an application to extend time for the institution of statute barred proceedings, in both of which circumstances the successful applicant nearly always has to pay the unsuccessful respondent's costs. In my opinion it would have been completely unrealistic and unfair to expect Mr Ridgeway to relinquish his judgment without testing the appellant's case and he should have the reasonable costs of doing so.

32. Indeed, I would not be prepared to set aside the judgment entered on 26 July 1993 without making the orders as to costs and security for the judgment debt to which I have just referred.

33. Accordingly I propose to allow the appeal and order that the judgment of the Court of Requests entered on 26 July 1993, both in respect of the claim and counterclaim, herein be set aside; that the claim and counterclaim be remitted for retrial in the Court of Requests before another Commissioner on a date to be appointed by the Registrar; that the appellants pay the respondent's costs thrown away resulting from proceedings in the Court of Requests on 26 July 1993 and proceedings to enforce the judgment obtained on that date; and that the appellants pay the respondent's costs of this appeal to be taxed including the interlocutory applications to stay execution and to extend time for appealing. I also order that the sum of $3,399 paid into Court pursuant to the order of Zeeman J dated 30 August 1993 be paid to the Registrar of the Court of Requests at Hobart and that such sum not be paid out by the Registrar without an order by a Commissioner or the joint written request of the solicitors for all parties. I will reserve liberty for counsel to speak to the minutes of the orders just pronounced.