WATERS v HERBERT [1995] NSWCA 495

WATERS v HERBERT

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Kirpy P, PRIESTLEY JA and POWELL JA 1 May 1995

[1995] NSWCA 495

PRACTICE & PROCEDURE — adjournment — appellate review of refusal in District Court (Sidis DCJ) — summons for leave to appeal — held: (refusing the summons): (1) The Court of Appeal would not disturb the decision which was one of practice and procedure involving the exercise of the judge's discretion and which had not been shown to have been wrong. GSA Industries Pty Ltd vy NT Gas Ltd (1990) 24 NSWLR 710 (CA) applied; (2) The District Court could consider severing the determination of the issues of liability and damages to permit the plaintiff time to prove the outcome of an operation but whether it would do so was a matter for it.

Supreme Court Rules Part 51, rule 3.

Kirby P. The Court has before it an application for leave to appeal from a decision of Sidis DCJ in the District Court refusing an adjournment. It is rare indeed that the Court disturbs decisions of judges of trial to grant or refuse an adjournment. The reasons are well known. See eg GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 701 (CA) 712 and cases there cited.

It should be observed that no affidavit has been placed before the Court indicating any basis upon which the Court could properly intervene in such a discretionary decision of practice or procedure in this case. However, the Court has dealt with the application on the footing that the statement filed under Part 51 Rule 3 SCR sets out the facts of the case. The opponent agreed to that course.

It appears, from the point of view of the opponent, that the real issue of the trial will be the issue of liability. The case will proceed on 5 May 1995 in the District Court. Powell JA has suggested that it may recommend itself to the judge of trial that the issue of liability be severed from the issue of damages. If that were done, such a course would permit the claimant to have the advantage which he seeks to protect, namely more time to see how the operation, which he has undergone, affects his recovery.