COMPTROLLER-GENERAL OF CUSTOMS v KINGSWOOD DISTILLERY PTY LTD and ORS [1994] NSWCA 46

COMPTROLLER-GENERAL OF CUSTOMS v KINGSWOOD DISTILLERY PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, CLARKE and MEAGHER JJA 25 July 1994 [1994] NSWCA 46

Mahoney AP This is an application for leave to appeal which comes before the Court on summons. In support of the application, there was a statement under the rules, but no affidavits. When the matter was called on an application was then made on behalf of the applicant for leave to appeal for leave to tender a large affidavit and the respondent sought an adjournment for three weeks upon the basis that that affidavit had been served only after Spm on Friday last. In reply, it was said that the material in relation to the amendment (which I take to consist of some of the documents in the affidavit) had been available from a much earlier time. The Court has not had the opportunity to peruse the detail of the affidavit now tendered.

There was a dispute as to the adjournment. It then appeared, as Clarke JA pointed out, that a copy of the Judge's judgment that appeared in the affidavit tendered to the Court was defective, in that pages of it were missing. In the circumstances, Mr Robberds QC had, if I may say so, little alternative but to agree to an adjournment so that at least that matter could be put in proper form.

The application will then be stood over until 15 August 1994. It would appear, subject to argument, that the costs of today should be reserved to the Court dealing with the application.

Mr Robberds QC has indicated that on that day his client will be pressing that the matter proceed and will object to any further adjournment. What he has said has been noted on the transcript. What is to be done on that occasion will be a matter for the Court then dealing with the matter to decide. I would, therefore, propose that the matter be stood over and that the order for costs be made accordingly.