SIMMONDS v SPOONER [No. 1] [1995] NSWCA 427

SIMMONDS v SPOONER [No. 1]

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBy P, COLE JA and ROLFE AJA 28 March 1995 [1995] NSWCA 427

PRACTICE AND PROCEDURE — Court of Appeal — personal injuries action — primary judge (McInerney J) disbelieved the plaintiff — awards small judgment — plaintiff appeals — difficulties of overcoming opinion of primary judge — dispute arises with plaintiff's solicitors — employee of solicitors takes file — plaintiff returns to former solicitors — late conference with counsel — Senior and Junior Counsel withdraw from appeal having regard to complaints made — fresh solicitor claims he is unable to prepare for and fairly present appeal — respondent does not claim actual prejudice — case listed in Special Damages List of the Court of Appeal — no written submissions filed for appellant — on an application for adjournment of hearing of the appeal to permit proper preparation of the appeal — held. (Cole JA; Rolfe AJA agreeing; Kirby P dissenting): The adjournment should be refused and the matter ordered to proceed as listed. Differing observations by Kirby P and Cole JA on principles governing adjournment of the hearing of appeals fixed for hearing. Taylor v Taylor ((1979) 143 CLR 1; W Dazenko Structural & General Engineering Pty Ltd v Fraser Hrones & Co. Ltd, unreported, Court of Appeal (NSW), 5 October 1990; (1990) [NSW] JB 132; Apex Pallet Hire Pty Ltd v Brambles Holdings Ltd, Full Court, Victoria, 4 April 1988, unreported, considered.

Kirby P. Before the Court is a contested application for an adjournment of an appeal which is listed for hearing this day.

The appeal is the second in the list of three appeals fixed for hearing today, in a month which the Court has set aside for the disposal of damages cases. The list has been long heralded. Special procedures have been adopted for the list. Special directions have been given for the conduct of the appeals. The purpose of the list is to help the Court to clear a backlog of cases which hold up justice. It is not entirely trite to say again that justice delayed is justice denied.