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

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

" 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

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

"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

"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

"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

"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

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

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

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

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

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

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

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

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] HCA 36; (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

taken to mean an attempt to deceive the Full Court. That was not a

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

"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.

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

"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

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

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