In Brimbank Automotive Pty Ltd v Murphy [2009] VSC 26, Justice Kaye today neatly summarised the Victorian law in relation to applications to adjourn trials, in a thoroughly orthodox manner. All these kind of decisions say much the same thing, but with different emphases in relation to when a decision maker is entitled to say ‘Enough’s enough you goose. You’ve had your chances. I don’t care if you’re not ready for trial. We’re starting. Move it.’ The Readers’ Digest edition of KJ’s version — which makes no attempts to break free from The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 — is:
‘a court should not refuse an application for an adjournment, where to do so would cause injustice to the party making the application, unless the grant of the adjournment would occasion irreparable prejudice to the other side, such prejudice not being capable of being remedied by an appropriate order as to costs or otherwise. … The exercise by the court of its discretion in such a case is not the occasion to punish a party, or its practitioners, for oversight, mistake or tardiness. Rather, the overriding requirement is that the court must do justice between the parties.’
Then his Honour upheld a Magistrate’s refusal to grant an adjournment application on the day of trial, but on the basis that it was unsupported by any evidence, truly an exceptional case. The full passage is as follows:
’10 It is well established that where a court or tribunal has failed to comply with a relevant principle of procedural fairness or natural justice, such a failure may constitute an appropriate basis for relief by way of certiorari.[1]
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12 The guiding principle for the exercise of the discretion is that a court should not refuse an application for an adjournment, where to do so would cause injustice to the party making the application, unless the grant of the adjournment would occasion irreparable prejudice to the other side, such prejudice not being capable of being remedied by an appropriate order as to costs or otherwise.[4] Thus, in Walker v Walker[5] Simon P stated:
“… 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 … .”
13 In determining whether to grant an adjournment, a court is entitled to take into account, as a relevant circumstance, the exigencies of case management. However, that consideration should not be permitted to prevail over the rights of the parties before the court, and in particular it should not predominate over the right of a particular party to be able to present its case properly to the court.[6] The exercise by the court of its discretion in such a case is not the occasion to punish a party, or its practitioners, for oversight, mistake or tardiness. Rather, the overriding requirement is that the court must do justice between the parties.[7] The point was stated in authoritative terms in the joint judgment of Dawson J, Gaudron J and McHugh J in The State of Queensland & Anor v JL Holdings Pty Ltd[8], as follows:
“In our view the matters referred to by the primary judge were insufficient to justify her Honour’s refusal of the application by the applicants to amend their defence and nothing has been made to appear before us which would otherwise support that refusal. Justice is the paramount consideration in determining an application such as the one in question. Save insofar as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion.”’
[1] Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 176.
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[4] See for example Smith & Anor v Gannawarra Shire Council & Anor (2002) 4 VR 344, 350 (Charles JA); The State of Queensland & Anor v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, 155.
[5] [1967] 1 WLR 327, 330.
[6] See for example Howarth v Adey [1996] 2 VR 535, 544 (Winneke P); Smith v Gannawarra Shire Council (2002) 4 VR 344, 350 (Charles JA), 352-353 (Winneke P).
[7] Compare Kostakenellis v Allen [1974] VR 596, 607.
[8] [1997] HCA 1; (1997) 189 CLR 146, 155.
