DEMOVICH v BUILDING SERVICES CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER JA and FITZGERALD AJA 8 October 1998, 8 October 1998 [1998] NSWCA 69 Meagher JA This is an appeal by Mr Demovich against a verdict and judgment given by his Honour Judge Wall in proceedings in the District Court on 31 January 1996, 1 February 1996 and 2 February 1996 in which his Honour gave a verdict and judgment in favour of the plaintiff in that case, Building Services Corporation, the respondent in the present case. Although initially the case started with eight grounds of appeal, only two of them have been pursued. The first ground of appeal is that his Honour erred in refusing the appellant's application, which was Mr Demovich's application, to have the hearing adjourned. The case had a slightly chequered history. An application was made by Mr Demovich on 8 November 1995, or thereabouts, to have the case adjourned when it was listed for hearing on that day. The grounds of that application seem to have been the default of the plaintiff in the late supply of a Scott schedule, however the application was made and was acceeded to. The next date, mentioned here as being 13 January 1996, when the present appellant, represented by counsel and solicitors, moved on a notice of motion to vacate the hearing on the following day, 31 January 1996. That motion was heard by his Honour, Judge Wall, and dismissed. The case came on for hearing then on 1 November and on the first day proceeded with the appellant conducting his own case. On the second day of the hearing the appellant applied for adjournment and that adjournment was refused. It is the refusal of that adjournment which constitutes the first ground of this appeal. Mr Desiatnic, after drawing our attention to the relevant cases, points out that, as far as one can see, when the case commenced Mr Demovich expected to have legal representation and informed the Court of that. His command of English was inadequate. He was not totally familiar with the law and legal procedures. He had difficulty in getting the judge and the witnesses to understand him and he was not wholly familiar with the key elements of the case against him. On the other hand, as Ms Olsson has pointed out in her submissions, he did not supply any real evidence of the terms of any retainer he had with his solicitor or of any arrangements he had with his solicitor or with his counsel about appearing at trial or the reason for his representatives non-attendance or, other than in one example, of any attempt to contact his solicitor. Moreover, as Ms Olsson also points out, his Honour must have been entitled to take into account the general desirability of the efficient administration of the law. When his Honour refused the application for adjournment it cannot, in my view, be said that he made any error of law, that he stated any mistaken view of the facts or that his judgment was palpably unsustainable. He exercised in his discretion in a way which cannot successfully be challenged. In my mind, for those reasons the first ground of appeal must fail. 2 UNREPORTED JUDGMENTS All other grounds of appeal were abandoned, except the eighth ground of appeal and this is somewhat curious. The eighth ground of appeal was expressed in the following terms: His Honour erred in law in concluding that the plaintiff had a statutory cause of action in the circumstances of the case, pursuant to s98(1) of the Building Services Corporation Act 1989. Everyone has agreed that that is not the cause of action relied on by the plaintiff. The fact of the matter is that the plaintiff did have a cause of action, under s34(3) 3 of the Builders Licensing Act 1971. That is conceded by learned counsel for the appellant and is submitted by the learned counsel for the respondent. The judge recognised that and an examination of his Honour's reasons shows both that he understood that the cause of action arose under s34 of the old Act, not under s98 of the new Act. He also pointed that out to the appellant. The counsel for the appellant was placed in the invidious position on appeal of having to concede that the cause of action against his client was unchallengeable, under a certain section of a certain Act, but wished to demonstrate that it did not arise under another section of another Act, nobody having been misled by the difference. In those circumstances, it becomes absurd to try and suggest that there was any error in law for failure to give justice. For those reasons, in my view, the appeal should be dismissed with costs. Mason P I have no doubt that the appellant and the Court laboured under difficulties in conducting a hearing in which the appellant was unrepresented. But there is no principle equivalent to Dietrich's Case (1992) 177 CLR 292 in relation to civil proceedings. The trial judge was in a better position than we are to appreciate the particular difficulties with which he was confronted in a trial where the adjournment, which was refused and about which complaint is now made, was only sought on the second day of the hearing. He was better equipped than we are to take steps to ensure that the trial proceeded in a fair manner. His view, of course, is not conclusive but it has not been suggested that any specific unfairness occurred in consequence of the appellant being unrepresented, nor has it been suggested that the verdict cannot be sustained on the bases upon which it stands. In my view, this is very relevant in the assessment that this Court has to make in asking itself whether the trial miscarried. The task confronting an appellant Court is to consider whether the refusal of the adjournment betokened error. In that regard Pupo v The Builders Licensing Board (Court of Appeal, unreported, 24 May, 1996) is quite distinguishable, not only because of its much more extreme facts, but because that was an application for an adjournment in a hearing before the Court of Appeal. I appreciate that the appellant's difficulties should not be weighed too heavily against him in any finding that he failed to advance proper grounds for an adjournment that he belatedly sought, but the application that was made did not come without a context. There had been the application on the day prior to the adjourned fixed hearing date at which the appellant was represented by counsel. The non-appearance of solicitor or barrister on the fixed day for hearing was not a situation due to them being hit by a bus or some other totally supervening event. The Court was entitled to be given some information and to this day we are left speculating as to the real reason as to why there was no attendance. In my view the discretion did not miscarry. I agree with the reasons advanced by Mr Justice Meagher in relation to the disposal of the other ground of appeal. URJ DEMOVICH v BUILDING SERVICES CORPORATION (Mason P) 3 Fitzgerald AJA I agree that the appeal should be dismissed with costs and have nothing to add to the reasons of the other members of the Court. Mason P The appeal is dismissed with costs. 5 Appeal dismissed with costs. Counsel for the appellant: Dr R J Desiatnik Solicitors for the appellant: Taylor & Scott Counsel for the respondent: E M Olssen Solicitors for the respondent: C J Aird