AUSTRALIAN DYERS AND BLEACHERS PTY LTD v WILLIAM ROBERTS [1989] NSWCA 9

AUSTRALIAN DYERS AND BLEACHERS PTY LTD v WILLIAM ROBERTS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, SAMUELS JJA, and Hope AJA 22 September 1989, 22 September 1989

[1989] NSWCA 9

JURY TRIAL — application for adjournment — refused — principal ground of appeal that refusal caused injustice — ground rejected on basis that trial judge made no error in refusing, on material before him, the application — other grounds dismissed — no new matter of principle.

Priestley JA This is an appeal seeking a new trial of proceedings which were heard before Carruthers J and a jury of four. The plaintiffs case before the jury was for damages for injury he had suffered to the index and middle fingers of his right hand. The appeal does not raise any questions concerning the liability of the defendant for the damages which were claimed at the trial.

The grounds of appeal, as finally settled in an amended notice of appeal, were that the trial judge had erred in certain directions to the jury; that the verdict of the jury was excessive; and that the trial judge erred in refusing an application made on the defendant's behalf on Friday 1 May 1987 for an adjournment until Tuesday 5 May 1987 to permit the giving of evidence on behalf of the defendant by Dr Scarf.

The last ground of appeal was the one principally argued before the court today. It was not in terms conceded by counsel for the appellate defendant but it seems that the appeal could only succeed if the ground concerning the refusal to grant the adjournment was made out. That ground is, in a way, connected with the ground that the amount of damages awarded by the jury's verdict was excessive and in what I say concerning the adjournment ground I will also be dealing, in part, with the excessive damages ground.

The facts concerning the adjournment ground were that the trial, having begun on Wednesday 29 April 1987, and having proceeded through the plaintiff's case on Wednesday 29 April and Thursday 30 April and the defendant's case having begun late on Thursday 30, an application was made, in the absence of the jury, as soon, it would appear from the transcript, as proceedings began in court on Friday 1 May 1987. The application was that the hearing of the matter be adjourned so that Dr Scarf could be called.