THE FRIENDS OF THE GLENREAGH DORRIGO LINE INCORPORATED and ORS v JONES and ORS [1994] NSWCA 101

THE FRIENDS OF THE GLENREAGH DORRIGO LINE INCORPORATED and ORS v JONES and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and MAHONEY JA 15 March 1994, 30 March 1994

PRACTICE and PROCEDURE — adjournment — protracted litigation in Equity Division — belated application for legal aid rejected — appeal lodged to Legal Aid Review Committee — primary judge (Bryson J) refuses adjournment and dismisses proceedings — gives no express indication of the "special circumstances" warranting that course having regard to the requirements of the Legal Aid Commission Act 1979, s57 — on appeal — held:

(1) (by the Court): In the circumstances, the provisions of s57 of the Act required the primary judge to adjourn the proceedings and the judge erred in failing to do so;

(2) (per Kirby P): semble the judge also erred in failing in his reasons to identify the "special circumstances" which warranted the refusal of adjournment;

(3) (per Gleeson CJ and Mahoney JA): But for the "technical defect" in the exercise by the judge of his discretion, the course adopted might well have been open to him having

regard to the duty of courts to ensure the pursuit of remedies with appropriate diligence and skill.

Ketteman v Hansel Properties Ltd [1987] 1 AC 189 (HL) and Ashmore v Corporation of Lloyd's [1992] 1 WLR 446 (HL) considered; (4) (by the Court): Upon the re exercise by the Court of Appeal of the discretion which miscarried at first instance, the Court would not be satisfied that the proceedings should

not be adjourned. The proceedings so adjourned should be returned to the Equity Division for trial.

WORDS and PHRASES - "special circumstances". Legal Aid Commission Act 1979, s57.

ORDERS

1. Appeal upheld;

2. Orders made by Bryson J on 17 March 1991, set aside;

3. Proceedings returned to the Equity Division to determine what directions or orders should now be made;