ROGERS v WENTWORTH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, SAMUELS and MAHONEY JJA 17 February 1988 [1988] NSWCA 130 application to vacate hearing date — applicant not notified by Registrar of hearing date — found that applicant not prejudiced Hope JA The court has before it an application to vacate the hearing date fixed for proceedings brought by the claimant to set aside orders made by this court on 6 May 1987. The proceedings were instituted some while ago and have been mentioned from time to time before the court. On 4 December 1987 the matter was stood over to a date to be fixed by the Registrar. The record of the court as to what was done on that day is in these terms:- "Both matters stood over to a date to be fixed by the Registrar but to proceed to hearing of the contempt matters and the contempt matters to be stood over to a subsequent date for hearing by the Registrar." The Registrar apparently fixed the date for the hearing of the application to set aside the orders for tomorrow, 18 February, but according to the applicant did not notify him or his solicitors. The opponent, Ms Wentworth, was notified and has prepared the case for hearing accordingly. The claimant has filed all his affidavit evidence in relation to the matter as has the opponent. On one view of the matter, the issues raised in the proceedings could be disposed of by reference to a very few number of documents. It is possible that on another view of the matter the proceedings might involve the giving of oral evidence and reference to that evidence. The claimant submits that he is prejudiced particularly because of what he submits is the complexity of the matter or some aspects of the matter; the fact that Mr Hutley of counsel has been acting in the matter for some time and is familiar with these matters but no other counsel has as yet been briefed in the matter; and that the claimant' and his legal advisers only received notice that the date for the hearing of the application had been fixed for IS February either on Monday or Tuesday of this week, that is, on IS or 16 February. We have been told that Ms Wentworth has required deponents of affidavits filed on behalf of the claimant to be present for cross-examination and it is probable the claimant will require to cross-examine Ms Wentworth. As it seems to me, the hearing date having been fixed, it is difficult to determine what prejudice will be suffered by the claimant at this stage if the matter does proceed tomorrow. As I have said, on one view of the matter the issues might be limited to a consideration of a very few number of documents. It is difficult to see why that case could not be prepared by other counsel. It may be that in the course of the hearing of the matter it will appear that the claimant is prejudiced because of the evidence that is adduced and relied upon by Ms Wentworth or that he is required to deal with in response to some claim made by her or evidence adduced by her. 2 UNREPORTED JUDGMENTS However, the matter has been in the list for so long that despite that unfortunate, and as at present unexplained, absence of any notice of the date to the claimant before this week the application for adjournment should not be granted. The matter should stand for hearing tomorrow but if during the course of the hearing it appears to the court, on the application of the claimant that because of what happens during the course of the hearing the claimant is prejudiced, he can renew his application for the adjournment of the further hearing of the matter to a date when he would not be prejudiced. The application is refused. The applicant should pay the costs of today's proceedings.