WINBOURNE AND ORS v THE NATIONAL COMMERCIAL BANK OF JEDDAH AND ANOR [1992] NSWCA 275

WINBOURNE AND ORS v THE NATIONAL COMMERCIAL BANK OF JEDDAH AND ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and HANDLEY JJA 16 March 1992 [1992] NSWCA 275

PRACTICE and PROCEDURE — Court of Appeal — adjournment — hearing of summons for leave to appeal — connection of summons with subject matter of further hearing before primary judge — challenges to pleadings — summons earlier adjourned to await outstanding orders — orders made shortly before adjourned date — whether opponents should have anticipated further adjournment in the light of earlier orders — whether claimants should have alerted opponents to proposed application — HELD: The proceedings should be adjourned so that all challenges to decisions on pleadings could be heard together — but claimants should pay costs for not having earlier notified the opponents of the application — security for costs refused — no special circumstances.

Supreme Court Rules, Pt51 R11.

Kirby P Before the Court is an application by motion by Mr Raymond J Winbourne and nine others (the claimants) for the adjournment of the hearing of a summons for leave to appeal returned this day. The principles governing the grant or refusal of an adjournment are not in doubt. They require (relevantly) that an adjournment should ordinarily be granted if justice to a party appears to require that course and if the inconvenience occasioned by the adjournment can be adequately compensated by an appropriate order for costs and a suitable order for the expedition of the hearing of the adjourned proceedings. Matson v Matson (1968) 70 SR 203, 210 (CA).

EARLIER ORDERS OF THE COURT ADJOURNING SUMMONS

The proceedings were originally before the Court on 17 February 1992. The Court was then differently constituted (Mahoney and Sheller JJA and Hope A-JA). Following the partial argument of the proceedings, which involve a summons for leave to appeal from interlocutory orders of Young J, it emerged that another matter was outstanding which was said to be connected with the subject mater of the summons. This was an application which was then awaiting determination, in relation to paral 16 of the claimants' pleadings. In the course of the proceedings on that day Mr Lyons QC (who then, as now, appeared for the opponents) asked the Court to deal with the summons without delay. Then, as now, he protested at,the proposal that the summons be stood over to abide the ruling on paral16. However, Mahoney JA, on behalf of the Court, indicated that the Court did not propose to deal with "one and not the other". I take the "one" referred to, to be the proceedings dealing with paral15 and paral15A of the pleadings (which are before us now) and the "other" to be the contest concerning paral 16.