RICHARD BRADY AND SONS PTY LTD v BASKYS [1989] NSWCA 175

RICHARD BRADY AND SONS PTY LTD v BASKYS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and MEAGHER JJA 21 March 1989

[1989] NSWCA 175

Samuels JA We do not think that this is an appropriate matter in which to grant leave to appeal. Normally, the Court does not give reasons for granting or refusing leave to appeal but in this case, because of its somewhat unusual nature and because initially at least it may have generated some degree of passion, we think that it would be appropriate to indicate why we have reached our conclusion.

The facts are set out primarily in two affidavits one by Mr Charles Vandervord, the defendant/claimant's solicitor, and the other the affidavit of Mr Hugh Macken, who had the conduct of the matter on the plaintiff/opponent's behalf. The facts are not described with absolute clarity but the material events appear to have been these.

Mr Vandervord's secretary was told on Thursday 16 March by Mr Macken that an adjournment would be sought in the proceeding, which was an action for damages brought by the opponent against the claimant, and which was fixed for hearing on Tuesday 21 March. Mr Vandervord responded by indicating on 17 March that any application which was proposed to be made on 20 March 1989 at 9.30 am would be strenuously opposed. Furthermore, that letter, which was sent both by fax and through the document exchange, required if an adjournment were to be sought that it should be made with full formality and that any deponents or other persons producing documents to be relied on should be available for cross-examination.

Then the opponent's solicitors responded on the same day (17 March 1989), again by facsimile, informing Mr Vandervord that the opponent would be able to attend at the trial on 21 March, adding: "Accordingly, we will not be applying for an adjournment on Monday 20 March 1989 and will so inform the court."