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. There was evidence before the judge in support of the application to the following effect: a subpoena had been served, in a fashion, upon Dr Scarf on 27 August 1986. Subsequently - and I am confining myself to the material that was before the trial judge so far as is known to this court - a letter dated 28 January 1987 was written by the defendant's solicitors to Dr Scarf making some statements which may have confused him but which, nevertheless, accurately told him that the case had been relisted for hearing on Wednesday 29 April 1987. The letter also told him he would be required to give evidence in the morning on that day. The letter also asked Dr Scarf, if he should not be in his rooms on 29 April 1987, to tell his secretary where he could be contacted at short notice. 2 UNREPORTED JUDGMENTS So far as concerns the communications between the defendant's solicitors and Dr Scarf, nothing further appears in the evidence beyond the statement in an affidavit sworn on 30 April 1987 by the solicitor then instructing counsel on behalf of the defendant, that he had telephoned Dr Scarf's rooms on 30 April 1987 and had said to his secretary "At what time of day will Dr Scarf be available to give evidence in these proceedings on 1 May 1987". His affidavit continued that to this enquiry he received the reply "The doctor is in Bangkok until Tuesday". The solicitor went on, in his affidavit, to say that he had not been told, prior to 30 April 1987, either by Dr Scarf or his secretary, that he would be overseas at the time of the trial of this cause. From this it would seem to be an almost inescapable inference that between despatch of the letter in January and the enquiry of 30 April 1987, there had been no communication between the doctor and the solicitor in charge of the defendant's case. The other material which was before the trial judge in support of the application consisted of a number of reports made by Dr Scarf covering the period from August 1982 through to 24 July 1984. These reports showed that Dr Scarf had examined the plaintiff on a number of occasions and that on almost every occasion he formed an opinion which he expressed in virtually identical terms, although his estimate of the loss of efficient use of the plaintiffs index and middle fingers and of his right hand varied to some extent from time to time. His reports showed that he took the view that the injury the plaintiff had suffered was of no great consequence to his capacity to earn. The trial judge refused the application for the adjournment. It is argued here today that in doing so he caused a serious miscarriage of the trial or, to use more accurately the words of counsel's submission today, that a gross injustice to the defendant had resulted from the refusal of the application for the adjournment. Associated with this submission was the contention that it could be seen from the terms of his Honour's summing up and the amount of the award of the jury to the plaintiff, that the jury were left in the situation that they had a one sided view of the case, that in effect the judge had, in his summing up, put only the plaintiff's case and that had the evidence of Dr Scarf been available, plainly the jury' verdict would either have been significantly less or - and I think this was implicit in what counsel said - a prospect of a lesser result, which the defendant was entitled to have considered by the jury, had been wrongly withheld from the defendant; that is that the jury may well have produced a lower verdict had Dr Scarf's evidence been available. This was said to demonstrate the injustice of the refusal of the adjournment. On the facts that were before the trial judge it seems to me that he was well entitled to have in mind one or both of two considerations. It was certainly open to him to act on the basis that the defendant had not regarded the matter of Dr Scarf's evidence being put before the jury as of such importance as to make it desirable to ensure Dr Scarf's presence at the trial. Although on the material before him concerning the defendant's procedures to have Dr Scarf at the trial, Dr Scarf's absence could be explained either as showing carelessness or oversight or as being the result of a decision, it was open to the judge to conclude, having seen the conduct of the case before him, that the last explanation was correct. The first of the two alternatives that I was referring to earlier, in saying that they seem to me to have been reasonably open to the judge, either separately or together, was that the circumstances that were revealed to him at the time when the application for adjournment was made were consistent with the view being UWRIBTRALIAN DYERS AND BLEACHERS PTY LTD v WILLIAM ROBERTS (Priestley JAB taken by the defendant's advisers that the steps already taken to have Dr Scarf available at the trial were sufficient, if the defendant's advisers were saying to themselves in their preparation or saying amongst themselves in their preparation for trial: well, we can get him if we need him. The other of the two matters I am referring to is that the judge could have concluded that the defendant, at the time when the trial commenced, had not intended at all to call Dr Scarf. There could be many reasons for such a decision being a sensible one. If the trial judge took either of those views which I have briefly stated, it was open to him and sensibly open to him to conclude that the defendant's advisers had not, at the commencement of the trial, being in possession of Dr Scarf's reports and, no doubt, having appropriate foreknowledge of what the plaintiff's medical evidence was likely to say, thought Dr Scarf's evidence was of such importance that its absence would cause injustice to the defendant. If it was reasonably open to the judge to take that view, that is that the defendant's advisers had not thought it would be necessary to call him as a witness, it follows, in my opinion, that it was open to him to conclude, on all the materials before him, that it was not a denial of justice to refuse the adjournment. That, in my opinion, is sufficient to answer the defendant/appellant's complaint in this court. The law is not in dispute. Adjourmnents of this kind are a matter left to the discretion of the trial judge. They will not be interfered with by appellate courts except for very strong reasons. The usual way of stating the rule is by saying that the fact that the appellate court thinks the trial judge was in error in refusing the adjournment, is not, of itself, sufficient to warrant interference with his exercise of discretion; combined with the appellate court's view that he was in error must be the further opinion that the result of the error was to cause significant injustice in the disposition of the matter before the trial judge. For the reasons I have given I do not think that the appellant has shown that the trial judge was in error and part of my reason for saying that he was not in error is that it was not demonstrated, before him, that the absence of the desired witness would be of critical detriment to the defendant. As I have tried to explain, on the material before the trial judge it was reasonably open to him to conclude that the defendant's advisers themselves did not consider the evidence was of that requisite importance. It further does not seem to me to be appropriate, if material is not put before the trial judge in applying for an adjournment to show that denial will result in significant injustice, to seek to persuade the appellate court on wider grounds, including what happened subsequently at the trial, to get to the result that injustice was demonstrated in the re-fusal to grant the adjournment. What I have said disposes of what seems to me to have been the major ground of the appeal. On the matter of the appeal against quantum, there was undoubtedly material before the jury, in the way of evidence, justifying each of the element which the trial judge left to the jury. There was no complaint about the way in which those elements were left to the jury by counsel appearing at the trial and, in fairness to the trial judge, I think I should also say that having read his summing up, it does not seem to me properly to be characterised as one of a one sided character or which put only the plaintiff's case to the jury. I will use one matter which was complained of to illustrate why I take that view. I will not go to any further particulars in the summing up which, of course, has to be read as a whole. The appellant complained that before the jury the judge 4 UNREPORTED JUDGMENTS had referred to the plaintiff's right hand as possibly a crippled right hand. When the actual passage in which the phrase appears is read, it seems to me to give a somewhat different impression from that received by hearing the words in isolation. What the judge said was: "In determining what is appropriate compensation you would not, of course, say: what would I have taken to have my hand caught between these rollers, to have had this pain and suffering, these operations, to be left, as he is, at the age of forty-three with what you might think is a crippled right hand?" Although I can understand the defendant not relishing the reference to a crippled right hand, when the whole paragraph in which the phrase occurs is read, it does not seem to me to be nearly so positive an indication of a view taken by the judge himself, as counsel would have us accept, and bearing in mind that the jury had that hand before them for three days, to look at, as well as having seen the plaintiff cross-examined about his injury in the witness box, my conclusion is that exception to what his Honour said was not warranted. I might add that that appears to be borne out by the fact that exception was not taken to it at the trial. Further on the matter of quantum, stated very shortly, the trial judge in the course of his directions mentioned to the jury: that it was open to them to accept that $50,000 had been lost by the plaintiff up to the date of the trial in earnings because of the injury that he had suffered; that on one view of the facts that were before them, they could calculate, after taking into account the sort of contingencies that must be taken into account, that his future loss of earnings would amount to $107,508; and that in the final figure they must arrive at, one sum to be taken into account, about which there was no argument, was an amount of $7,503 for medical expenses. If these figures are added and then taken from the jury's verdict of $190,000, a figure of approximately $25,000 remains to cover matters such as pain, suffering and loss of the amenities of life. Counsel did not hesitate to agree that that figure alone could not be criticised, but attacked the two principal figures, being the first two that I mentioned. The two principal sums were, in my opinion, open, on the evidence, to be left to the jury. Further, the trial judge in his directions made it plain that it was a matter for the jury whether they accepted those figures or lesser figures. On this footing and bearing in mind what I have already said about the refusal of the adjournment not being a decision that this court would interfere with, there does not seem to me to be any basis for holding that the amount of the jury's verdict was excessive. The further matter mentioned in the course of counsel's submissions was the manner of expression used by the trial judge when putting the Jones v Dunkel point to them. Without going into the detail of what was said, I will simply say that having read the whole of the summing up I do not think the jury could have been misled in the way for which counsel concended. In any event this ground, as I understood it, was not put as an independent ground but as part of a final submission that taking together everything which had been put to the court and particularly putting it together with what was said to be the unjust refusal of the adjournment, the court would conclude that there had been a mistrial necessitating the ordering of a new trial. In my opinion that is not the conclusion the court should come to but on the contrary, the court should, in my opinion, dismiss the appeal with costs. Samuels JA I agree. Out of deference to Mr Einfeld and his juniors, who advanced every argument which some singularly unpromising material was capable of yielding, I will add a word or two for myself. UWRIBTRALIAN DYERS AND BLEACHERS PTY LTD v WILLIAM ROBERTS (Samuels JAB As to the refusal for the adjournment, an appellate court will rarely interfere in the exercise of the discretion of the trial judge to grant or refuse an adjournment unless it can be shown that the judge has failed to exercise the discretion judicially or has acted on a wrong principle. I need only refer to Bates v McDonald and Ors (1985) 2 NSWLR 89 at 97 and 101. No doubt the use of the word "rarely" is an exercise in judicial caution since it is difficult to imagine a situation in which a court would interfere unless one of those two elements had been established. In the present case let it be assumed that the defendant had always intended to call Dr Scarf and had regarded, with some reason, his evidence as being critical to its prospects in the case. If that was so then it follows that its advisers had not done what they ought to have done to ensure Dr Scarf's attendant. When the application was made the trial had been running for two days. If, in accordance with the assumption which I have made, the defendant's solicitors had taken the steps which could have been taken, with all respect, to ensure Dr Scarf's availability, an application might have been made at the beginning of the trial or even before the trial commenced and certainly before the jury was empanelled. As it turned out, had the application been granted there would have been entailed the waste of most of Friday and all of Monday. Furthermore, there is no evidence and there was none, so far as one can see, before Carruthers J which was capable of establishing that Dr Scarf would have been available on Tuesday. Hence the adjournment might have been granted and the time wasted, all to no avail. While it may be that prejudice of this sort may be compensated in the case of plaintiff by an award of costs, that emollient is not available to soothe the dissatisfaction of members of the jury. It would have meant further disruption of the jury's life and while the primary disruption which jury service entails is to be considered as a debt which citizens owe to the State, juries should be protected against any exacerbation of the inroads which that service makes into their ordinary lives. Moreover, a delay of two days blunts the minds of those whose everyday life is not concerned with analysing unfamiliar facts, and may cause dissatisfaction which might prejudice the rigorous detachment which juries are supposed to bring to a decision on matters of this kind. In my opinion there was ample material before his Honour which, he acting judicially and taking account of proper principle, would have led him to reject the application. In the course of the argument I drew attention to the fact that some points were not taken by counsel appearing for the defendant at the trial. I should make it clear that those observations were not intended, in any way, as criticism but rather designed to support the view that the matters now raised are not of significance. Finally, I think, if I may respectfully say so, that it is unfortunate that his Honour did not record both the substance of the application for the adjournment and his reasons for rejecting it. I am not suggesting that this failure should or could have grounded an appeal. However, while trial judges are under great pressure and, I quite understand, have little leisure to devote to ensuring that every facet of the trial is recorded, they should see that a note is made of applications of this and other kinds which are of importance and which, conceivably, could lead to an appeal. This is particularly so, it seems to me, when exercises of discretion are concerned. In such cases the determination may be 6 UNREPORTED JUDGMENTS influenced by matters known to the judge but not known to the appellate court. Unless they are noted, the matter may pass off, to some extent, in a state of ignorance. I agree that the appeal should be dismissed with costs. 6 Hope AJA I agree. Appeal dismissed with costs. 10 Counsel for Appellant: M Einfeld QC, with AJ Bartley, J Hatzitergos Solicitors for Appellant: Einfelds Counsel for Respondent: G Graham 15 Solicitors for Respondent: Pryor Tzannes and Wallis