PARGA INVESTMENTS PTY LIMITED vy HOOD SAILMAKERS (AUSTRALIA) PTY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and HANDLEY JJA 27 March 1991, 27 March 1991 [1991] NSWCA 220 APPEAL FROM DISTRICT COURT — District Court Judge refuses defendant's application for adjournment of trial — judge hears case — enters judgment for plaintiff against defendant -appeal against judgment on ground that application for judgment wrongly refused — no mistake by judge in application of principle or in understanding of facts — appeal dismissed with costs. Priestley JA This appeal raises a very narrow point. Proceedings were commenced in the District Court in 1982 by the respondent claiming, in substance, payment for goods sold to the defendant. There is no need to go through the history of the proceedings thereafter beyond saying they were not conducted with great expedition on behalf of the plaintiff/respondent, but there seems to have been no desire at all on the part of the defendant/appellant for the matter to be brought on with anything like expedition. Eventually, in May of 1988, a date was fixed for hearing of the proceedings, that date being well ahead and being 26 October 1988. The defence that had been filed by the defendant simply denied the material allegations in the plaintiff's statement of claim and gave no indication whether the defendant was doing any more in regard to those allegations than putting the plaintiff to proof. The defence was verified by an affidavit sworn by Gregory Clyde Walters. A cross-action was filed at the same time. Despite indications to the contrary in the long interval between the filing of the defendant's pleas and the matter coming on for hearing, when the matter eventually came on for hearing the defendant's pleadings remained as they had been filed in 1983. On 21 October 1988 an application for adjournment of the fixture was brought before his Honour Judge Gallen. That adjournment was refused. No complaint is made about the refusal of that adjournment. When the matter came on for hearing before his Honour Judge Pain on 26 October, the Wednesday following the Friday when the adjournment application had been refused by Judge Gallen, a further application for adjournment was made. The basis of this application was an affidavit of Dr Miyashita which said that a Mr Ron Walters had been admitted to the Royal North Shore Hospital on the evening of 23 October 1988 and was not fit to attend court for a period of at least a week. The appeal to this court is based on the refusal of Judge Pain to grant an adjournment on the basis of Dr Miyashita's affidavit. It was made clear to us this morning that the appellant's contention was that the judge erred in refusing the adjournment the application for which was based on Dr Miyashita's affidavit. What the judge said in disposing of the adjournment application, after referring to the refusal of the earlier application for adjournment on the preceding Friday, and briefly noting the long history of the matter, which to him suggested an unwillingness on the part of the defendant to have the issues raised on the original 2 UNREPORTED JUDGMENTS statement of claim determined, was that there was insufficient material in Dr Miyashita's affidavit to warrant the granting of the application. The argument this morning proceeded on the basis that the ill person, a Mr Ron Walters, who the judge assumed was the managing director of the defendant, was a witness whose presence was important for the defendant properly to defend the plaintiff's claim. Counsel was unable to point to any material in the appeal papers before us to show that there was any eight in that assumption. Obviously enough, Mr Ron Walters was likely to have been interested in the litigation and to have wanted to be present at the trial. That is a different thing, however, from his presence being either essential or important to the defendant's conduct of the trial. When that consideration is taken together with the fact that it was another Mr Walters who had sworn the affidavit verifying the defence to the statement of claim, and since in the ordinary course that verifying affidavit would have been before his Honour Judge Pain, the conclusion seems clear that the defendant in seeking the adjournment had not made out a case to the trial judge upon which he could reasonably conclude that there would be any material litigious disadvantage to the defendant in the plaintiff's claim being allowed to proceed. It does not seem to, on the material before this court, or on what counsel has been able to suggest may have been before the trial judge, that the trial judge either made any mistake in the principles to be applied in approaching the granting of adjournments or misunderstood the factual position. That alone is enough to require the dismissal of the appeal. However, there is a further point which should be mentioned. To succeed in having a judgment set aside on the ground that an adjournment was wrongly refused the appellant must show not only that, for one of the reasons I mentioned earlier, either of principle or fundamental misunderstanding of the facts, the trial judge was mistaken in refusing the application for adjournment, the appellant must also show that that refusal resulted in some injustice to the defendant. In the present case, so far as the materials available to this court are concerned, the defendant's real claim in the litigation was what is contained in its cross-claim. The case, so far as the materials allow a judgment to be formed, was one where there was no real dispute about the supply of the goods and the price for the goods; the question was whether the defendant would be able to prove that in the course of or as a result of the contractual supply of the goods the defendant had suffered damages which it could recover from the plaintiff. What happened at the trial was that Judge Pain found the plaintiff's claim proved and then stood over the defendant's cross-claim generally with liberty to either party to restore it to the list on seven days' notice. Thus, I have difficulty in seeing that the appellant can make out any case at all to this court of any injustice having been suffered by the trial judge's refusal of the adjournment. It is always said in cases of this kind that an appellate court is very slow to interfere with the exercise of the trial judge's discretion. In this case, I see no reason at all to interfere with that exercise. In my opinion, the appeal should be dismissed with costs. Clarke JA I agree. Handley JA I also agree. Appeal dismissed with costs. Counsel for the Appellant: BE Kinsella WARGA INVESTMENTS PTY LIMITED v HOOD SAILMAKERS (AUSTRALIA) PTS LIMITED (Handley JA) (Handley JA) Counsel for the Respondent: GM Watson / TF McKenzie Solicitors for the Appellant: Christopher Kinsella Solicitors for the Respondent: Solomon Partners