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." On Friday 17 March Mr Macken was away from the office in the Compensation Court and he did not return to his desk until the evening of that day. It is to be inferred from his affidavit that he did not take any steps when he did return to the office to find out what Messrs Vandervords' response to the application for an adjournment was or had been. Innocent therefore of any knowledge that the application for adjournment had been opposed, and that a Mr Assheton-Chin, also employed by or a member of the firm of solicitors acting for the opponent, had then informed Vandervords that the application would not be made, he went off to the court of Yeldham J on Monday 20 March to instruct Mr Karsai of counsel to make the application for adjournment. Before he left for the court he received a telephone call from the opponent's wife stating that her husband had been admitted to hospital on Sunday 19 March. I should interpolate that the ground of the proposed adjournment was that the opponent was too ill to attend court, although he was not in hospital on Thursday, it would seem. 2 UNREPORTED JUDGMENTS At the court Mr Karsai made an application for adjournment ex parte to Yeldham J, who granted it on the basis that the respondent was in hospital, and made no order for costs. The affidavits do not relate precisely what occurred in that exchange between Mr Karsai and the judge. I would infer that Mr Karsai, of course, told the judge that the opponent was in hospital and either volunteered or said in answer to a question of the judge that the claimant's solicitors were aware that the application was to be made. After the application had been granted Mr Macken telephoned Mr Vandervord and told him of the result. Mr Vandervord, no doubt somewhat taken aback, asked him, "What about my letter?", or words to that effect, and it was it seems at that stage that Mr Macken, looking at his file, saw for the first time the exchange of correspondence towards the end of the previous week to which I have referred. Mr Vandervord then came up to the court and, according to his affidavit, saw the Associate, handed the Associate his opponent's letter of 17 March indicating that the adjournment would not be sought, and asked that it be given to the judge. That apparently was done and Yeldham J resumed the Bench. Mr Vandervord made an apology, presumably for his non-appearance at 9.30 and, I infer - although this is not stated - asked the judge to reconsider the order he had made. This Yeldham J declined to do. It appears that following this Mr Vandervord, either with the consent of his opponents or at least without any opposition from them, made a further application, presumably by the medium of the Associate, requesting the judge to rehear the application for adjournment and this the judge also declined to do. It is in that state of the facts that the claimant/defendant seeks leave to appeal from the order adjourning the hearing of the proceeding on the footing, substantially, that in making the order and in refusing to relist the application his Honour was guilty of a denial of natural justice. The claimant faces an initial obstacle because it is now agreed that the opponent is in hospital and could not be in court for the hearing of the matter today. Indeed, counsel very properly only faintly suggested that if an application were made afresh he could reasonably seek to oppose an adjournment. However, there remains the question of principle to be determined. We do not think that on the facts we have related any denial of natural justice occurred. Certainly no such thing could be charged against the learned judge in respect of the first application. It is still, as I understand it, usual for counsel or a solicitor on one side to make an application of this sort, telling the judge that he does so on behalf of himself and his opponent, who is aware of the application, and such an explanation is generally, though not invariably in particular circumstances, accepted. On the second occasion the judge came on the Bench and heard Mr Vandervord and, I would infer, having ascertained that the opponent was indeed in hospital, took the view that there was no point in reconsidering his order. This was the exercise of a classic discretion. It is not to the point that some other decision might have been made or even that the matter might have been heard at greater length. It certainly did not amount to a denial of natural justice. The third occasion which consisted of an attempt to get the judge to hear the application once more, and which was refused, could not again in point of refusal be regarded as a denial of natural justice. It is understandable that what weighed most with the judge was the fact that it was all a rather pointless exercise, or URJ RICHARD BRADY AND SONS PTY LTD v BASKYS (Samuels JA) 3 might have seemed so to him, since there was no way in which the matter could in fact proceed. There is no evidence that any application for costs was made to the learned judge. It is a rather unfortunate matter, and I feel bound to say that although no impropriety of any kind can be alleged against anyone involved it is at least regrettable that Mr Macken did not check the state of the file before instructing counsel to make the application. It really has all emerged from an internal lack of communication in the office of the opponent's solicitors. As we have indicated, we do not think that leave to appeal should be granted. The question is what order for costs should be made with respect to this application? In the ordinary course, since the application has failed, we would order the claimant to pay the costs. However, since we feel that the misunderstanding arose largely, if not wholly, from a failure of communication in the office of Beston and Riordan, the opponent's solicitors, we think the proper course to take is to make no order for the costs of the application. Accordingly, the orders of the Court are that leave to appeal is refused and the summons is dismissed, with no order for costs.