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. In relation to paral16, that paragraph was the subject of a decision given by Young J in the Equity Division of the Supreme Court on Thursday last, 12 March 1992. That decision was then pronounced by his Honour. His reasons were given orally in open court. However, the transcribed and edited reasons did not become 2 UNREPORTED JUDGMENTS available to the Parties until this day. They were not available to the Court earlier in the day. They were placed before the Court after the luncheon adjournment. The Court adjourned the summons when it was before us earlier today with a view to allowing the parties to secure the reasons of Young J, if they were available, as they later proved to be. The hope of the Court then was that the parties might be in a position to proceed with the argument on the anticipated summons for leave in respect of paral 16 at the same time as the summons listed. However, when the matter was returned after lunch, counsel appearing for the claimants indicated that he was not in a position to argue the summons. He, instead, pressed for an adjournment of the proceedings so that there could be returned before the Court at the one time (as envisaged by the Court on 17 February) the summons which is foreshadowed in respect of Young J's orders of Thursday last, and the proceedings which were before the Court on 17 February, adjourned to today. FAILURE TO NOTIFY PROPOSED FURTHER ADJOURNMENT APPLICATION Counsel for the opponents has continued his opposition to the claimants' application for adjournment. He has merit on his side in his protest concerning the way in which this litigation has proceeded in the Court. He is also justified in a complaint about the lack of the courtesy of notification of the intended application made today. No such notification was given either on Thursday last (when Young J's decision was announced) or on Friday last (when it would have become plain to the claimants that an adjournment was required) nor even this morning until immediately before the matter was called on before the Court. Nevertheless, I think it is clear from the way in which the matter proceeded before the Court on 17 February that it was the intention of the Court, as then constituted, that for the efficient consideration of the several challenges to the interlocutory orders of Young J, such challenges should be heard in their entirety and in their relation to each other. It short, it was the clearly announced intention of the Court that it would deal with the challenges in respect of paral15, paral15A, which are now before us, and in relation to parall6, which was foreshadowed, when the decision on paral 16 was available to be considered and any summons in respect of it filed. That was the view the Court then took. It is the view which I would also now take. Having regard to the position adopted, it was a reasonable view for the claimants to expect that their summons would probably not be dealt with today having regard to the way in which the Court had dealt with the matter on the last occasion and the proximity of Young J's orders. CONCLUSIONS: AN ADJOURNMENT GRANTED ON TERMS This being the case, it is my opinion that the hearing of the summons should be adjourned. However, had notice of the application been given on Thursday last or on Friday or even over the weekend by those representing the claimants to those representing the opponents, it is possible that the considerable expenses which have been incurred to bring senior counsel to this Court from interstate might have been avoided. That is only a possibility. It has always been the position of the opponents that they wished the matter to press forward. They might have arranged for their counsel to attend whatever notice the claimants had given them. However, it is a possibility to avoid costs which had been forfeited by the way in which the claimants proceeded in the matter. On behalf of the opponents, senior counsel has asked for an order for costs, for an order for security for costs and for an order that no further step be taken in the proceedings until such security is deposited. Under the Rules of this Court, WAYIBOURNE AND ORS v THE NATIONAL COMMERCIAL BANK OF JEDDAH AND ANOB (Handley JA) security may only be ordered in "special circumstances". See SCR Pt51 R11. 1 am not convinced that special circumstances exist here. However, in the light of the way in which the claimants have dealt with the matter I am of the view that the claimants should pay the costs which are thrown away by the adjournment of the hearings of the summons which I would now allow. Clarke JA I agree. Handley JA I agree. KIRBY P: The orders of the Court are accordingly as I have provided. 1. 2. Adjourn the hearing of the summons before the Court in relation to the orders of Young J of 19 December 1991 until Monday 23 March 1992; Direct that any summons for leave to appeal from the decision of Young J of 12 March 1992 which the claimants intend to bring be filed and served, with a statement under the Rules, by Wednesday 18 March 1992 at 4pm; Return any such summons which is taken out by the claimants pursuant to (2) before the Court on Monday 23 March 1992 to be heard with priority in the summons hearing list of that day; Direct short written submissions by both parties to be filed and exchanged by Friday 20 March 1992 at 4 pm; and Order that the claimants pay the opponents' costs occasioned by the adjournment of the proceedings today. Counsel for the Claimant: P Taylor Solicitors for the Claimant: Landa, David Stewart and Co Counsel for the Respondent: J Lyons QC with Mr P Robinson Solicitors for the Respondent: Freehill Hollingdale and Page