SIMMONDS v SPOONER (No. 2) [1995] NSWCA 428

SIMMONDS v SPOONER (No 2)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, COLE JA and ROLFE AJA/Sitjudge 28 March 1995, 28 March 1995

[1995] NSWCA 428

PRACTICE AND PROCEDURE — Court of Appeal — adjournment — appeal listed for hearing in Damages List former solicitors and counsel withdraw shortly before hearing — new solicitor refused adjournment — newly retained counsel renews application consideration of justice to appellant and other litigants — held (by maj): Adjournment refused — appeal hearing to proceed. W Dazenko Structural and General Engineering Pty Ltd v Fraser Hrones and Co Ltd (CA) (NSW) unreported, 5 Oct 1990 (1990) [NSW] JB 132 appld

PRACTICE AND PROCEDURE — adjournment — Court of Appeal — hearing of appeal — former counsel withdraw two business days before hearing because of suggested conflict of interest and duty to solicitor — fresh solicitor retained and appears in Court of Appeal to request adjournment which is refused — solicitor retains counsel who renews application for adjournment — counsel states that he does not believe that the appeal can be safely and fairly presented — additional evidence as to circumstances of withdrawal of former solicitors and counsel — whether case should be required to proceed to hearing — held. (Cole JA and Rolfe AJA; Kirby P dissenting). The appellant personally had adequate notice of the hearing and consideration of justice included consideration of other parties waiting for the hearing of their appeals in the Court. Adjournment refused. Matter required to proceed to hearing. W Dazenko Structural and General Engineering Pty Ltd v Fraser Hrones and Co Ltd, unreported Court of Appeal (NSW), 5 October 1990; (1990) [NSW] JB 132 discussed and applied.

Kirby P Earlier this day the Court had to deal with an application for adjournment made on behalf of Mr Gregory Simmonds by his solicitor, Mr WB Beilby.