Haset Sali v SPC Ltd [1993] HCA 47;

High Court of Australia|1993-10-06|Before: Ormiston J, Hugh JJ

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

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

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] HCA 56; (1981) 55 ALJR 701, at p.703; [1981] HCA 56; 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

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] FCA 48; (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

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 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

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

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

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

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

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

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,

which will not lightly be set aside on appeal ((6) See, for example,

House v. The King [1936] HCA 40; (1936) 55 CLR 499; Norbis v. Norbis [1986] HCA 17; (1986) 161

CLR 513, at pp.518-519; Minister for Aboriginal Affairs v.

Peko-Wallsend Ltd. [1986] HCA 40; (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] HCA 39; (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

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

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

At a glance

Court

Decision date

Before

Source

Judgment (357 paragraphs)

Parties

Cases Cited (13)

Haset Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841 (6 October 1993)