FEDERAL COURT OF AUSTRALIA D'Anglers Paradise Pty Ltd v MMI General Insurance Ltd [2000] FCA 1301 PRACTICE AND PROCEDURE - Appeal against the trial judge's refusal of an adjournment of the trial and dismissal of the action - consideration of the factors before the trial judge and the exercise of discretion. D'ANGLERS PARADISE PTY LTD v MMI GENERAL INSURANCE LIMITED QG31 OF 2000 COOPER, SUNDBERG AND KIEFEL JJ BRISBANE 18 AUGUST 2000 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG31 OF 2000 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: D'ANGLERS PARADISE PTY LTD (ACN 064 264 464) APPELLANT AND: MMI GENERAL INSURANCE LIMITED (ACN 000 122 850) RESPONDENT JUDGE: COOPER, KIEFEL AND SUNDBERG JJ DATE OF ORDER: 18 AUGUST 2000 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the respondent's costs, on an indemnity basis, in relation to the preparation of the appeal books. 3. The appellant pay the balance of the respondent's costs of and incidental to the appeal, including reserved costs, if any, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG31 OF 2000 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: D'ANGLERS PARADISE PTY LTD (ACN 064 264 464) APPELLANT AND: MMI GENERAL INSURANCE LIMITED (ACN 000 122 850) RESPONDENT JUDGE: COOPER, KIEFEL AND SUNDBERG JJ DATE: 18 AUGUST 2000 PLACE: BRISBANE EX TEMPORE REASONS FOR JUDGMENT THE COURT 1 This is an appeal from a judgment of Dowsett J dismissing the appellant's action with costs when the appellant failed to tender any evidence on the trial of the action. 2 The sole ground of appeal is that his Honour erred in finding that no basis for the adjournment of the trial had been made out by the appellant. 3 The question of an adjournment turned on the determination of a question of fact, namely whether Mr Loiero, the principal officer of the appellant, was mentally capable to give instructions on behalf of the appellant and to give evidence on its behalf in the proceedings. 4 His Honour heard evidence from Mr Hocking, the appellant's solicitor, Dr Friend a psychiatrist who had examined Mr Loiero, and from a Mr Ferler, a journalist who interviewed Mr Loiero on 3 April 2000 on three occasions. The evidence of Mr Ferler was that Mr Loiero had given him a lucid account of the facts alleged in his case which formed the basis of an article written by Mr Ferler and published in a Sunshine Coast paper on 4 April 2000. 5 The article was put to Dr Friend in cross-examination and he was asked whether it affected his view of Mr Loiero's capacity to participate in the trial. Dr Friend conceded that the basis for his opinion as to Mr Loiero's capacity would be effectively undermined if he had in fact been able to give the account. 6 His Honour's conclusion is contained in paragraph 6 of his reasons. He said : "In those circumstances Dr Friend's evidence goes no way towards demonstrating on the balance of probabilities, or even on any lesser standard, substantial grounds for believing that Mr Loiero is unable to participate in this case, either to the extent of giving instructions on behalf of the applicant or as a witness. In any event I would be reluctant to adjourn the trial upon the basis of Dr Friend's evidence unless Mr Loiero had been produced as a witness to verify the complaints made to Dr Friend. That has not been offered. Quite apart from that matter, I am of the view that no basis for an adjournment has been made out, and I therefore decline the application." 7 It was submitted by the appellant that it was not open to his Honour to refuse the adjournment based on Mr Loiero's failure to appear in Brisbane on 4 April 2000 when it was known that he was in Sydney. That is not what occurred. 8 Having regard to the complaints made by Mr Loiero to Dr Friend, it was for the appellant to make out the factual basis upon which Dr Friend based his opinion. This was particularly so when credible evidence undermining the basis of Dr Friend's opinion was tendered by the respondent. The failure of the appellant to call Mr Loiero undermined the worth and weight to be given to the evidence of Dr Friend. Further, his Honour, as is clear from the passage from the reasons set out above, did not rely on the absence of Mr Loiero to refuse the adjournment. He was otherwise satisfied that no basis for an adjournment had been made out. 9 It was submitted by the appellant that his Honour should have placed no reliance on the evidence of Mr Ferler because the article was written by reference to source materials other than Mr Loiero and the interviews were conducted by telephone and not in person. Rather, it was submitted greater weight should have been put on the physical observations of Mr Loiero at and around the date of trial made by Mr Hocking, the appellant's solicitor, and Dr Friend. 10 The question of the weight to be given to the evidence was a matter for the trial judge. There was evidence available to allow him to come to the conclusions he did. Importantly, his Honour was not persuaded on the evidence produced by the appellant, that Mr Loiero was incapable to give instructions or to give evidence on the trial of the action. It was open to his Honour to reject or give little weight to evidence called by the appellant, having regard to the total body of evidence before his Honour. 11 In those circumstances, no basis was shown by the appellant for an adjournment and the application failed. 12 The appellant has failed to make out its contention that the trial judge erred in refusing the adjournment. 13 Having failed to secure an adjournment, the appellant was on notice that the trial was to proceed. It instructed its legal representatives not to tender any evidence on the trial nor to proceed further with it. The appellant was on notice from the previous day, that the respondent would move for judgment if this occurred. There was no occasion for his Honour to do anything other than to enter judgment against the appellant by dismissing its action when the appellant had determined not to tender evidence and proceed on its claim, and in fact, did not do so when called upon on trial. 14 The appeal should be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment herein of the Honourable Justices Cooper, Kiefel and Sundberg. Associate: Dated: 18 August 2000 Solicitor for the Applicant: Dennis & Company Counsel for the Respondent: G A Thompson SC with D Clothier Solicitor for the Respondent: Deacons Graham James Date of Hearing: 18 August 2000 Date of Judgment: 18 August 2000