HAWKINS v JAMES [1990] NSWCA 91

HAWKINS v JAMES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and PRIESTLEY JJA 29 January 1990, 29 January 1990

[1990] NSWCA 91

PRACTICE AND PROCEDURE — appeal — interlocutory order — trial judge refuses adjournment — immediate application for stay of the hearing of a trial to permit a summons for leave to appeal to be brought the following day to the Court of Appeal — claim for damages for medical professional negligence — case set down in November 1989 for trial in the Supreme Court in January 1990 — late application on morning of trial for an adjournment on the basis of the absence from the jurisdiction of the plaintiff's key medical witnesses — report of evidence of one such witness is strongly supportive of the plaintiff — counsel advises that plaintiff will fail without such evidence — trial judge refuses adjournment — application to Court of Appeal for relief in support of proposed summons for leave to appeal — held: (Mahoney and Priestley JJA; Kirby P dissenting) The Court of Appeal should not disturb the exercise by the trial judge of his discretion to refuse an adjournment and should not provide interim relief to permit such a challenge to be brought on a summons for leave to appeal.

COSTS — solicitors' mistakes — whether relevant to contested application for adjournment — proper order to be made — whether solicitors could be ordered to pay costs themselves — Riv-Oland Marble Co (Vic) Pty Ltd v Settef SPA (1989) 63 ALJR 519 referred to.

Kirby P On the first day of the new Law Term for 1990, the Court was in the midst of hearing a summons for prerogative relief in respect of a criminal trial listed to commence in the District Court on the following day. That summons had itself been expedited for obvious reasons. The hearing of those proceedings was interrupted by an urgent application in the present case.