GUIDE DOG OWNERS' AND FRIENDS' ASSOCIATION v ROBINSON [1988] NSWCA 58

GUIDE DOG OWNERS' AND FRIENDS' ASSOCIATION v ROBINSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 18 July 1988

[1988] NSWCA 58

Mahoney JA (MOTION) This is an application for a vacation of a hearing date which has been fixed. The appeal is an appeal, is the court has been informed, from a judgment of Young J in the Equity Division in relation to the construction of a will. The hearing of the matter was previously fixed for 22 April 1988 and that was vacated. The proceeding was then fixed for 22 July 1988.

Application is now made for the further adjournment of the matter on the basis that Mrs Phyllis Gration has been admitted to hospital and will undergo an operation today, 18 July 1988; the operation is of some seriousness. The genuineness of her condition is not in doubt.

The court has been given, without objection, a medical certificate dated 15 July 1988 indicating that she will he in hospital for some ten days and unfit to resume full activities until some six weeks from the time of operation.

If Mrs Gration's attendance at the appeal were absolutely necessary then a sufficient case has been made out. The parties have not indicated that relevant prejudice arises by reason of the adjournment which cannot he cured by an award of costs.

The argument has been directed essentially to whether Mrs Gration's presence at the appeal is absolutely necessary. I have used the word "absolutely". It does not appear that it is absolutely necessary. However, no doubt it would be appropriate for her to he available to assist counsel on the appeal. It is said that she is the founder and the day to day director of the Guide Dog Owners' and Friends' Association (the appellant in the proceedings) and as experience shows sometimes matters arise during the course of an appeal on which it is necessary for counsel to take instructions in order to assist the court.