New South Wales Court of Appeal CITATION : Sutherland v Littler [2000] NSWCA 335 FILE NUMBER(S) : CA 40233/00 HEARING DATE(S) : 21 November 2000 JUDGMENT DATE : 21 November 2000 PARTIES : Mark John Sutherland and Ruth Jennifer Sutherland v Harold Raymond Littler JUDGMENT OF : Meagher JA at 1; Mason P at 9; Fitzgerald JA at 11 LOWER COURT JURISDICTION : District Court LOWER COURT 89/98 at Maitland FILE NUMBER(S) : LOWER COURT Herron DCJ JUDICIAL OFFICER : COUNSEL : Appellant: P. Dooley Respondent: J.D. Hislop QC/N.E. Chen SOLICITORS : Appellant: Brett S. Gubbay Respondent: Marshall & Partners CATCHWORDS : Assault - appeal against exercise of a trial judge's discretion on an adjournment. DECISION : 1. Appeal dismissed with costs. - 2 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40233/00 MASON P MEAGHER JA FITZGERALD JA Tuesday, 21 November 2000 MARK JOHN SUTHERLAND AND RUTH JENNIFER SUTHERLAND v HAROLD RAYMOND LITTLER JUDGMENT 1 MEAGHER JA: This is an appeal by Mr Sutherland against one aspect of a judgment and verdict found against him by his Honour Judge Herron in the District Court on 9 March 2000. It had been heard on 6, 7, 8 and 9 March. The action by the plaintiff, Mr Littler, was an action in assault. The facts out of which the action arose were a sort of horse play on the marina in a North Coast town. Unfortunately the frivolity got out of hand and Mr Littler suffered severe injury. 2 The plaintiff's version of the events differed very considerably from the defendant's. The judge believed the former and disbelieved the latter. Accordingly there was a verdict for the plaintiff. If his Honour had believed the defendant and his witnesses, there would have been a verdict for the defendant. No appeal has been brought on his Honour's central findings. 3 However on 9 March 2000, just as his Honour was about to deliver judgment, the defendant's counsel asked for an adjournment to some future date to enable him to call a witness for the defendant. It was said that the witness's evidence might, and I stress might, be relevant. It is also said that during the adjournment the defendant's lawyers would be able to confirm, or otherwise, whether the witness's evidence might, I again stress might, be relevant. 4 The witness in question we now know lived at Nelson's Bay. It was not explained to his Honour why no immediate subpoena had been served on this witness. Nor was his Honour told what this witness' evidence would be. His Honour was not told when the defendant had first heard about this witness, nor was his Honour told what steps had been taken to assemble relevant witnesses. It will be noted that everything which was said to his Honour was couched in the realms of possibility. The witness might be obtained. His evidence might be favourable. The defendant might wish to call him. 5 In these circumstances it seems to me hardly surprising that his Honour refused the application for an adjournment and it is against this refusal the present appeal is brought. 6 I cannot see how his Honour erred. 7 In my view it is essential to permit trial judges to exercise their discretionary powers in granting or refusing adjournments without undue appellate interference. I am fortified in my adherence to this principle by the observation that on the rare occasions when this Court has departed from this view, the results have been catastrophic. 8 I cannot see why his Honour's discretionary decision should be overruled. In my view both the appeal and the notice of motion ought be dismissed with costs. 9 MASON P: I have sympathy for the appellant's position now that they have in their possession a statement of a witness whose materiality to the matters in issue seems clear but as Meagher JA has indicated this Court's jurisdiction is limited to that of finding in the present case legal error or factual error in the exercise of a discretion. It is not our role to decide what we might have done in the circumstances. 10 What is critical in my perception of the matter is that the application made by the defendant's counsel to his Honour was that the matter stand over, not that it stand down. On that basis a trial judge in a busy running list was being asked to defer to another day an extemporary judgment that was to be delivered following a hearing that finished the preceding day. In light of what his Honour was told I see no error in the way he dealt with the application. I agree with the orders proposed. 11 FITZGERALD JA: I agree with the other members of the Court that no appealable error has been demonstrated. I have nothing to add to their Honour's reasons. I agree with the orders proposed. 12 MASON P: The motion to admit fresh evidence is dismissed with costs. The appeal is dismissed with costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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