SYKES v MAVRIDIS SYKES v HOUTKAMP SYKES v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 30 September 1988, 30 September 1988 [1988] NSWCA 151 DISTRICT COURT — appeal — trial judge orders postponement of continuation of trial — does so on basis of counsel's convenience and need for a transcript of evidence to date — application for interlocutory order in support of proposed appeal against such order — psychiatric evidence that trial should be concluded promptly — held: Interlocutory relief refused (1) as unwarranted disturbance of discretion of trial judge; (2) as possibly futile; and (3) as possibly unavailable in the Court of Appeal. Fraser Credits Pty Ltd v Osterburg-Olsen [1970] 1 NSWLR 121, 123. District Court Act 1973, s120. Supreme Court Act, 1970, s46. ORDERS Summons dismissed with costs. Kirby P At a late hour on a Friday afternoon application is made to me for an order to provide interlocutory relief to a plaintiff in the middle of a trial in the District Court. An interrupted trial in the District Court The trial concerns claims for damages brought by Patricia Sykes against three defendants. The proceeding is before Judge Newton. It is for assessment. The case is part heard. I am exercising the powers of the Court of Appeal pursuant to s46 of the Supreme Court Act 1970. When the trial in the District Court was listed, it was estimated that the case would last three days. However, more witnesses were called than were expected by the plaintiff when that estimate was given. Accordingly, by 3.30 pm today, the third day of the trial, it became clear that the matter would not be completed today. At that point the question arose as to what would occur for the further hearing of the case. I have no formal evidence before me of what transpired before Judge Newton. The delays in the provision of transcripts of proceedings in the District Court run into weeks rather than hours. Accordingly, it became necessary for me, in order to consider an oral application on behalf of the plaintiff, to deal with the matter on the basis of agreed facts or at least facts which were not seriously disputed when stated from the Bar table. The parties raised no objection to my taking this course. No process has been filed. No affidavits have been filed. However, there does not appear to be any serious dispute about the main thrust of the facts as they emerge before Judge Newton. Accordingly, it is reasonably safe for me to deal with the application and not simply to dismiss it on the basis that it is not formally before the Court. Where matters are urgent it is important that counsel should have the opportunity to approach this court. It is commendable, when they do so in proper circumstances, to have the Court provide the appellate review for which it is established. Formality should not impede substance where justice and the law so require. Because of the unavailability of transcript I cannot state precisely the reasons given for the course which Judge Newton took. However, I am informed that his Honour was asked by counsel appearing for the defendants to adjourn the matter 2 UNREPORTED JUDGMENTS until some time later in 1988 on two bases. The first was that counsel for the defendants would be in personal difficulties were the trial to continue in the District Court on Tuesday next, when the Court resumes after the holiday weekend. He apparently has made prior arrangements to be out of Sydney next week. Judge Newton, as I am informed, will be sitting in civil trials in the District Court. Presumably his Honour would be available to continue the trial. Counsel for the plaintiff is available. The second reason given for the interruption of the hearing was that the transcript of evidence was unavailable. It was suggested that it would be necessary to have the transcript for the completion of the trial, having regard to the burden of the evidence which had already been called. The transcript would not be available in the short term. The common experience of this Court shows that it sometimes takes weeks for the transcript in District Court proceedings to emerge and to be available to the Court and to the parties. Judge Newton was pressed by the plaintiff to proceed with the continuance of the trial next week. There are, of course, many reasons which suggest the desirability of the uninterrupted continuation of a trial once begun. Facts are then relatively fresh in the mind of the tribunal and of the representatives of the parties and of witnesses. Furthermore, in this case, his Honour received, as I have done, a report from Dr Dal Retallack, consultant psychiatrist. She expresses the opinion that; It is imperative at this stage to effect a speedy resolution of the litigation outstanding in order that Mrs Sykes will be able to put this behind her and concentrate on making an adjustment to her lifestyle which is going to be considerably limited as a result of her problems[...]. I am told that Judge Newton did not give formal reasons for his order postponing the continuance of the trial. However, that is not necessary in dealing with interlocutory applications such as this. See Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 370, 306. Accordingly, it was sufficient that he should take the course he did. This was to indicate, during argument and in the presence of counsel and of the parties, the reasons for refusing the application put on behalf of the plaintiff that the trial should continue next week. His Honour, instead, ordered that the matter should be listed for completion in the District Court on 21, 22 and 23 November, 1988. It must be said that, having regard to the delays in court lists today, that order itself represents some degree of expedition in bringing the trial to conclusion. However, it was not the degree of expedition which the plaintiff wished. It was for that reason that the application was made to me for reversal of Judge Newton's order and an interlocutory order safeguarding the utility of an appeal. Appellate restraint in discretionary orders The defendants are represented not by counsel who appeared before Judge Newton but by their solicitor. He supports the order which Judge Newton made. There are a number of difficulties which stand in the way of my interfering with the order, even to the extent of providing interim relief so that the matter could be disposed of formally in the Court of Appeal on Tuesday next. The first difficulty arises from the principle which governs the review by appellate courts of all discretionary decisions of trial courts. It is a principle oft repeated but never to be overlooked. Where a decision of a trial judge is discretionary in character, an appellate court may not intervene to substitute its own opinion for the exercise of the discretion of the trial judge unless it be shown WAKES v MAVRIDIS SYKES v HOUTKAMP SYKES v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby P) that the discretion has miscarried. The party seeking appellate intervention must show that the trial judge has acted on a wrong principle, taken into account irrelevant considerations, failed to take into account relevant considerations or otherwise reached a conclusion that is plainly wrong. See Mallett v Mallett (1904) 156 CLR 605. See also the other cases cited in the recent decision of the Court in The Pambula District Hospital v Herriman, unreported, CA, 5 August, 1988; (1988) NSWJB 137. There is a further refinement of this principle relevant to the present case. It was stated by Jordan CJ In Re the will of Gilbert (1946) 46 SR (NSW) 310, 322. Where the decision is not only discretionary but is categorised as one of practice and procedure, particular restraint is exercised. The reason for this special inhibition was described by Jordan CJ in vivid language. Otherwise litigants with a "long pocket" would be able interminably to interrupt trials, bringing matters to appeal at an interlocutory stage and on practice decisions. It does appear that Judge Newton had all relevant discretionary matters before him. I might myself have reached a different conclusion on the balance to be struck between the competing considerations of counsel's personal convenience, the interests of the plaintiff, and the necessity of a transcript. However, that is irrelevant. His Honour had a discretion. He exercised it. It is not one that I would be minded to disturb. Possible futility of interference There are additionally, other reasons for reaching such a conclusion. First, there is the practicality that counsel for the defendants is not before me. I have no evidence or knowledge of where he is. I am unaware of whether any order that I now made would have any utility whatsoever. For all I know, counsel may already have left the jurisdiction before becoming aware of this application. In these circumstances, what order could I now make without injustice to the defendants that would ensure that the trial proceeded on Tuesday? If counsel has already, without knowledge of these proceedings or at least without knowledge of any order made, left the jurisdiction how could I now, without serious injustice to the defendants, require that the matter proceed before Judge Newton on Tuesday next? How, for that matter, could the Court of Appeal so require? It could be the consequence of such an order that new counsel would have to take over the case for the defendants. Without a transcript, that would place such counsel at a very serious disadvantage. Furthermore, it would run into the difficulty that the plaintiff is in the middle of cross-examination. Possible unavailability of appeal to the Court of Appeal Secondly, there is the difficulty that the order made may fall within the limitation of the jurisdiction of this court expressed in the decision in Fraser Credits Pty Ltd v Osterburg-Olsen [1978] 1 NSWLR 121 at 123. That decision has been criticised in various later decisions of the Court, including by myself. It is the subject of an application not yet concluded in respect of which leave has been given to challenge the principle there stated. Nevertheless, it is a decision which has been frequently applied by the Court. It is the current authority of the Court on appeals from the District Court. It may be that Fraser Credits is distinguishable in that it dealt with an application to set aside a default judgment which was anterior to an action. It is possible that in this case, even accepting Fraser Credits the appeal would be against a decision made "in an action" in the sense used in $128 of the District Court Act 1973. It is not necessary to resolve that question. It is sufficient to note that it would be necessary for the plaintiff to distinguish the authority of Fraser 4 UNREPORTED JUDGMENTS Credits. Upon one view, that decision would stand in the way of the jurisdiction of the Court of Appeal to disturb Judge Newton's order. A third reason should also be mentioned. It is that upon one view, the course followed by Judge Newton was actually correct so that, even if the obstacle course which I have outlined could be overcome by the plaintiff, this Court would not be persuaded to interfere with it. One would have expected counsel, with time running out, to have discussed the future conduct of the trial at some time before half an hour prior to the end of the hearing on a Friday. However, this was apparently not done. The case had been estimated to last three days. Counsel are entitled to organise their personal and professional affairs around court estimates. It would perhaps have been preferable for counsel and the court to have discussed the consequences of the obvious inability to complete the case before the moment arrived at which that matter was apparently dealt with by Judge Newton. However that may be, the issue was not earlier discussed. In that eventuality, counsel for the plaintiff re-organised his arrangements upon an assumption that the matter would simply proceed next week. That might have been a reasonable assumption to make. In retrospect it would have been desirable for the matter to have been clarified with his opponent and by the court prior to the moment at which Judge Newton was asked to make his ruling. At that moment his Honour was informed of the re-arrangements by counsel for the plaintiff and of the arrangements which counsel for the defendants had made upon the contrary assumption. There was also then the suggestion of the need to have a transcript. A three day trial presents difficulties in reviewing facts. It is not for me, in my ignorance of the precise facts of this trial, to say that Judge Newton was wrong in deciding that a transcript should be obtained and that the personal arrangements made by counsel after a long weekend were so unreasonable that he should require them to be re-arranged. That is the sort of matter which our law leaves to a trial judge in charge of his court to determine as he thinks best. The lesson to be learned by practitioners Ihave gone into some detail in explaining these matters because I understand the disappointment which the delay will cause to Mrs Sykes. I also give full weight to the determination which has brought her counsel here and also the fact that the psychiatrist suggests, as is so often in cases of this kind, that it is desirable that the matter should be heard and completed promptly. It will be heard with at least a high degree of promptness by the standards of the courts. It will be concluded by the end of November. There is a lesson to be learned from this case. It is that it is desirable that matters of this kind should be discussed between representatives of parties well in advance of the conclusion of the available time rather than at the last minute when preconceptions were exposed and found to be different. On the precise question which is before me, whilst I would waive the procedural difficulties which stand in the way of the plaintiff, I cannot overcome the principles which restrain the interference of this Court in orders of this kind. Accordingly, the summons for interlocutory relief in support of an anticipated appeal must be dismissed. The costs of the summons must be paid by the plaintiff, the claimant in this Court. Counsel for the Claimant: ID Cullen Solicitors for the Claimant: GF Sharah Menville and Co WAKES v MAVRIDIS SYKES v HOUTKAMP SYKES v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Kirby P) Counsel for the Opponent: A Schwartz Solicitors for the Opponent: GE Lazar