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. With considerable hesitation I have come to the conclusion that it is appropriate to vacate the hearing date. In taking into account the propriety of Mrs Gration being present or the desirability from her point of view that she be so, I take into account also the interests of other parties involved. But having regard to what has been said from the Bar table in relation to prejudice, I am of the opinion that such prejudice (if any as) may exist can be dealt with by way of an appropriate order for costs. I will then order that the hearing date of 22 July 1988 be vacated. The applicant is to pay the respondents' costs of the motion. The applicant is also to pay such costs as have been incurred and thrown away in relation to the hearing on 22 July 1988, by reason of this adjournment. The matter is referred to the Registrar to fix an appropriate for hearing of the appeal. The parties may place before the Registrar exigencies which may affect the date to be allocated.