WRAY v COOPER [1996] NSWCA 566

WRAY v COOPER

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, SHELLER JA and Simos AJA 28 October 1996

[1996] NSWCA 566

Priestley JA. Some time ago this appeal was listed for hearing today. When it was called on for hearing this morning, counsel indicated he appeared for the appellant and said he would apply for an adjournment.

Another counsel also appeared for the appellant in order to hand up to the Court documents intended to comply with the Rules of Court about the ceasing to act of solicitors on the record in proceedings. On the basis that the appellant was represented in any event, the Court permitted those papers to be filed and allowed counsel instructed by the solicitors then on the record to retire.

The application for adjournment was opposed. As counsel who understood himself to be appearing for the appellant proceeded to make submissions in support of the application for the adjournment, it becameincreasingly apparent that what was being described was a situation not conducive to the granting of an adjournment and indicating a failure on the part of some person or persons to do what was necessary to have counsel properly briefed for the hearing of the appeal or otherwise have the appeal ready to proceed today.

Upon further enquiry it eventually emerged that the solicitor who had asked counsel to appear today for the appellant was not himself in a position to go on the record of the Court or instruct counsel to appear. I will not go further into the circumstances of how that came about. The solicitor gave evidence and the transcript will record all the events I have so far described that occurred today in Court, including the evidence of the solicitor.

The position that remains after all the material that has been given to the Court has been taken into account, is a very simple one. The appellant was responsible for having the appeal reach the stage of being listed for hearing today. He did that through the agency of the solicitors who until today were on the record of the Court as his legal representatives.