Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309 Hearing dates: 2 September 2011 Decision date: 30 September 2011 Before: Giles JA at [1]; Basten JA at [3]; Young JA at [30] Decision: By majority: (1) Grant leave to appeal. (2) Allow the appeal. (3) Set aside order of Balla DCJ of 31 August 2011 declining to vacate hearing fixed for 5 September 2011. (4) Order that said hearing be vacated. (5) Order each party bear and pay their own costs of this application and appeal and those occasioned by vacation of the hearing date. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE AND PROCEDURE- application for leave to appeal from refusal to grant adjournment- appeal will rarely be granted against refusal to grant adjournment- will be granted if refusal will produce an injustice- per Young JA, Giles JA agreeing: in the circumstances, refusal would produce injustice as trial would have to be adjourned part heard and damages would be determined twice due to related proceedings- leave to appeal granted- appeal allowed- trial date vacated- per Basten JA dissenting: the grounds for taking the extraordinary step of changing a judge's discretionary procedural decision are well established- the applicant did not make out a sufficient case for review. Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Bloch v Bloch [1981] HCA 56; 180 CLR 390 In re the Will of Gilbert (1946) 46 SR (NSW) 318 Maxwell v Keun [1928] 1 KB 645 Petrovic v Taara Formwork (Canberra) Pty Ltd (1982) 62 FLR 451 Category: Principal judgment Parties: David Dubois (Applicant) R & V Bergin Pty Ltd (Respondent) Representation: Counsel: