Consideration
33The court is reluctant to grant leave to appeal in matters of practice and procedure such as the granting of an adjournment or the vacation of a trial date: In re the Will of F B Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318. It will generally only intervene in such a case where it considers there is "a clear case of material error in the decision at first instance": Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65; (2014) 98 ACSR 301 (at [21]) per Macfarlan JA (Ward JA and Tobias AJA agreeing).
34In our view the primary judge's reasons, with respect, demonstrate such error.
35The principles recognised in Aon have substantially been embodied in s 56ff of the Civil Procedure Act 2005 (NSW) (the "CP Act"). The overriding purpose dictated by s 56(1) of the CP Act and the rules of court, "to facilitate the just, quick and cheap resolution of the real issues in civil proceedings", is well-known. Section 56(3) imposes a duty on "[a] party to civil proceedings ... to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court." Section 57 provides:
57 Objects of case management
(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:
(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).
36Section 58(1), CP Act required the primary judge to act in accordance with the dictates of justice in deciding whether to make any order granting the adjournment of the proceeding the appellant sought. Among the factors relevant to that determination were the provisions of s 56 and s 57 and, too, s 58(2), the latter relevantly including:
"(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
...
(iv) the degree to which the respective parties have fulfilled their duties under section 56(3),
...
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction."
37Allsop P (McColl and Basten JJA agreeing, the latter adding some observations) set out relevant background to the insertion of these provisions in the CP Act in Richards v Cornford (No 3) [2010] NSWCA 134 as follows:
"[42] The litigious process is inherently stressful for any party, in particular an individual. ... Litigation can be described as 'a costly and stressful, though necessary, evil': White v Overland [2001] FCA 1333 at [4]. The wider passage and the paragraph in which this appeared as part of the reasoning were approved by this Court in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 ; 53 NSWLR 116 at [1], [28] and [39]. That stress includes the uncertainty and concern as to the effects of legal costs that can lead to bankruptcy and financial ruin. The reality of the personal strain of litigation is now clearly recognised by the Courts: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220; Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 at [37]; GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 715 - 716; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [100].
[43] This being the nature of the process of litigation, the courts in this country in modern times, have sought to exercise control and supervision over litigation in order to see cases resolved in a relatively timely fashion. It cannot always be done. Parties, practitioners, courts and judges sometimes fall behind by reference to appropriate standards of efficiency and timeliness. Nevertheless, the need for the due despatch of the cases of litigants is ever-present and is a fundamental aim of the administration of justice.
[44] To put the matter simply and bluntly, parties are entitled to expect that the costly and stressful, though necessary evil that is litigation be resolved with reasonable despatch so as to minimise, where reasonably possible, the time during which people are subjected to its rigours and strains.
[45] Considerations of this character lay behind the decision of Parliament to pass the CP Act..."
38No criticism can be directed at the primary judge for seeking to give effect to the obligations of case management to which his Honour referred (at [18]). However, with respect, his Honour (who was no doubt dealing with the appellant's motion in the course of a busy list), failed to appreciate the difficult position in which Westpac's default in compliance with the two orders for filing evidence and its concomitant late service of substantial new evidence placed the appellant in what was clearly going to be a somewhat complex case.
39Even a legal practitioner might have needed more than 25 minutes to assess the significance of the evidence that Westpac effectively served on the appellant at the bar table on 30 September 2014. The evidence required the appellant to determine its importance to the issues in the case and to identify the steps that were needed to investigate the evidence and, in due course, to respond appropriately. The time afforded to the appellant to undertake that task at the hearing was, with respect, insufficient. It was, in our view, a material error for his Honour to conclude, in the circumstances, that the adjournment application should be rejected because the appellant had failed to demonstrate either practical injustice or prejudice arising from the late service of the new evidence.
40The appellant sought to explain to this Court the significance of further evidence he submitted the new evidence would require him to amass. It must be said that the relevance of some of it was not readily apparent to a Court with a somewhat imperfect understanding of the issues - the matter having been brought on speedily having regard to the imminence of the trial date, the pleadings were not before us. Nevertheless, as we have said, Mr Hynes frankly and fairly conceded that the new evidence raised issues not hitherto alive which the appellant should have the opportunity to investigate to propound his defence. The relevance and admissibility of such evidence the appellant may seek to rely upon in this respect must be a matter for the trial judge in due course.
41In this context, it was relevant however for his Honour to take into account that the appellant was advancing a defence under the CRA, the probable success of which might turn on an examination of the circumstances surrounding the entry into the facilities the appellant had guaranteed. The new evidence went directly to that issue. Not only did Westpac serve that evidence late, in default of two court orders, but in doing so it disclosed an important document which had not hitherto been provided in the course of discovery. In fairness to his Honour, that fact was not brought to his attention, no doubt because the appellant did not appreciate either the significance of the documents he was reading for the first time in court and possibly, too, because he did not appreciate at that time that the document had not been discovered. However, that merely highlights the significance of Westpac's default.
42It was also relevant, in our view, for the primary judge to take into account the relative position of the parties in preparing the case for the imminent trial. All are equal before the law. Courts cannot prefer the interests of self-represented litigants over those who are legally represented: Reisner v Bratt [2004] NSWCA 22 (at [4]) per Hodgson JA (Ipp JA agreeing); Malouf v Malouf [2006] NSWCA 83 (at [94]) per Mason P (McColl and Bryson JJA agreeing). Nevertheless, that does not mean that in considering the dictates of justice (s 58, CP Act) courts ignore the disparity which can exist between the resources available to a well-funded litigant such as Westpac and a self-represented litigant: see, for example, Serobian v Commonwealth Bank of Australia [2010] NSWCA 181 (at [42]) per Macfarlan JA (Tobias JA and Sackville AJA agreeing).
43It should, with respect, have been apparent to the primary judge that the appellant would be in great difficulty in the seven business days remaining to the commencement of the trial after 30 September, in dividing his resources between preparing to conduct a four day trial and amassing a case to respond to the new evidence. By way of comparison, Westpac, with all its resources, including representation by a highly regarded firm of solicitors, had been 25 days late in complying with orders intended to ensure the trial could proceed on 13 October. Westpac's lack of expedition placed the appellant in the invidious position in which he found himself on 30 September. These, too, were matters the primary judge should have, but did not, take into account in rejecting the adjournment application. This was also a material error.
44The degree of injustice the appellant faced consequent on Westpac's default warranted the primary judge acceding to the appellant's notice of motion. His Honour's failure to do so warranted this court's intervention to correct the injustice the appellant suffered.