STEFANOVIC v PETROVIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, MEAGHER JA and Hope AJA 30 October 1989 [1989] NSWCA 197 Gleeson CJ This is an application by the appellant for an adjournment of the appeal. The appeal is from a decision of Needham J in the Equity Division of the Court given in March 1988. It appears that on the 2 August 1989 this appeal was fixed for hearing on today's date, that is 30 October 1989. No evidence in support of the application for adjournment has been filed, but we have been provided with certain information from the bar table as to the basis of the application. We have been informed that on 4 August 1989 the appellant terminated the instructions of the solicitors who were then acting for him and instructed the solicitors who are presently acting for him. We are told that on 31 August 1989 counsel was briefed to act for the appellant and that on 23 October 1989 that counsel tendered certain advice concerning the appeal. We have no information as to the subject matter of that advice. On 26 October 1989 the appellant instructed his solicitors to withdraw the brief from that counsel and to brief new counsel. On 27 October 1989 Mr Healey of counsel, who now appears for the appellant, was briefed in the matter. The first ground of the application for adjournment is that Mr Healey says he has had insufficient time adequately to prepare the appeal. To the extent to which Mr Healey finds himself in a position of embarrassment, that is evidently the consequence of the course that the appellant has taken in relation to the instructions given to his solicitors about the retaining of other counsel and the termination of that retainer. Moreover, he was briefed on Friday for an appeal on Monday, and this is not a very complex matter. In my view what has gone on in relation to the briefing of counsel by the appellant or the appellant's solicitors is not an adequate ground for the adjournment of the appeal. The second ground on which an adjournment is sought is that Mr Healey this morning received instructions from the appellant to seek to raise on the appeal a matter which he acknowledges was not litigated before Needham J at first instance, that is to say an allegation that the original transfer of land the subject of these proceedings was procured by undue influence. A further ground on which an application for adjournment is made, which is to similar effect, is that the appellant also desires to raise or to seek to raise on the hearing of the appeal another matter which it is acknowledged was not raised before Needham J, that is to say an allegation that the deceased at the time of execution of the original transfer, the subject of these proceedings, lacked the necessary mental capacity to do so. Last minute attempts by the appellant to raise evidently serious allegations which were not raised at all before the trial judge do not in my view constitute a ground for adjournment. No explanation is advanced as to why these matters, if they were seriously in issue, could not have been raised and pursued at first instance. They appear to constitute attempts by the appellant at the very last minute to introduce into the case new issues which it would be inappropriate for 2 UNREPORTED JUDGMENTS this court to endeavour to consider on appeal. There is no evidence before this court relating to those issues; there are no findings of fact by the trial judge on them, and, as I said earlier, there is no explanation why they could not have been raised at first instance if it had been desired to litigate them. The final matter that has been referred to is a particular and apparently fairly minor point of fact is now desired to be contested. It is acknowledged by Mr Healey that it is a matter that only goes to the credit of one of the witnesses upon whose evidence the trial judge relied. Again I would not consider that the attempt to raise this further factual matter at this stage can justify the adjournment. I would propose that the application for adjournment should be refused. Meagher JA I agree. Hope AJA I agree. I would only add in so far as the application is based upon instructions to adduce or make use of evidence which goes to the credit of one of the respondents who gave evidence at first instance, and which relates to matters which occurred before the trial, subsections 8 and 9 of s75A of the Supreme Court Act require that that further evidence only be received upon special grounds. There are no special grounds which have been suggested in the submissions to this Court. Secondly, it is well established that fresh evidence which goes only to credit would be received only in the most rare circumstances. There are no circumstances here which would justify its receipt. I agree with the orders proposed. The application for adjournment is refused. Counsel for Appellant: J Healey and A Lennon Solicitors for Appellant: THW Rybak Counsel for Respondent: B Slowgrove Solicitors for Respondent: Coyne and Whittemore