Dubois v R & V Bergin Pty Ltd [2011] NSWCA 309 (30 September 2011)

Last Updated: 7 October 2011

Court of Appeal New South Wales

Case Title:	Dubois v R & V Bergin Pty Ltd
Medium Neutral Citation:	[2011] NSWCA 309
Hearing Date(s):	2 September 2011
Decision Date:	30 September 2011
Jurisdiction:
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] FCA 208; (1982) 62 FLR 451
Texts Cited:
Category:	Principal judgment
Parties:	David Dubois (Applicant) R & V Bergin Pty Ltd (Respondent)
Representation
- Counsel:	Counsel: E G Romaniuk (Applicant) P J Nolan (Respondent)
- Solicitors:	Solicitors: Nicholl & Co (Applicant) Moray & Agnew (Respondent)
File number(s):	CA 2007/295080
Decision Under Appeal
- Court / Tribunal:
- Before:	Balla DCJ
- Date of Decision:	31 August 2011
- Citation:
- Court File Number(s)	DC 5174/2007
Publication Restriction:

JUDGMENT

1. GILES JA : The judgment of Young JA expresses also my reasons for joining in the orders made on 2 September 2011. Seldom will the refusal of an adjournment, a discretionary decision of a procedural nature, be displaced on appeal. Nor should a defendant's consent to a plaintiff's application for an adjournment dominate the trial judge's exercise of discretion. But in the present case that consent reflected concurrence that, because it would be necessary to determine what damage was caused by the 2004 accident and what damage was caused by the 2007 accident, and the 2007 accident could still come before the court and in any event the trial of the 2004 accident could not be concluded, the proceedings should be adjourned. The presentation to the judge was unsatisfactory, but there was a compelling basis for adjournment.

2. The plaintiff's dilatoriness in applying for an adjournment, while relevant, did not detract from the position that going ahead with the proceedings would be a wholly unsatisfactory, and incomplete, resolution of the claim in relation to the 2004 accident. In these particular circumstances, appellate intervention was warranted.

3. BASTEN JA : On 2 September 2011 this Court granted leave to appeal from an order of Balla DCJ made on 31 August 2011, declining to vacate a hearing fixed for 5 September 2011 in the District Court. I did not join in the orders made by the Court. I would have refused leave to appeal, for the reasons set out below.

Background and issues

4. The circumstances, so far as they were made known to this Court, are set out by Young JA. In short, the applicant claims he suffered injury in a motor vehicle accident on 21 May 2004. He suffered further injury in a second accident in August 2007. He brought proceedings in the District Court in relation to the 2004 accident. He has made a claim under the Motor Accidents Compensation Act 1999 (NSW) in respect of the 2007 accident, but has not, on the evidence commenced proceedings. Whether proceedings will ever be commenced is not known: the claim may settle. The putative defendant is not before the Court.

5. As explained by the High Court in Bloch v Bloch [1981] HCA 56; 180 CLR 390 at 395 (Wilson J, Gibbs CJ, Murphy, Aickin and Brennan JJ agreeing):

"The decision whether to grant or refuse an adjournment lies in the discretion of the trial judge, and it is indeed seldom that an appellate court will feel justified in reviewing such a decision."

6. His Honour continued, citing with approval, the remarks of Atkin LJ in Maxwell v Keun [1928] 1 KB 645 at 653:

"I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so."

7. It is one thing to uphold an appeal against a final order or judgment, when the question of injustice can be judged against the outcome of a known trial; it is quite another to intervene, before the trial, to vacate a hearing date in circumstances where the trial judge has decided that such an order is not necessary or appropriate.

8. One excellent reason for not interfering is that if, in the course of the trial, matters warranting the grant of an adjournment became clear, a further application would no doubt be made and addressed on its merits, at a time when the potential for injustice or prejudice is readily assessable.

9. The grounds for appeal fell within three categories, namely:

(a) the objective circumstances of the case rendering it unfit presently to be tried;

(b) errors of principle in the reasons given by the primary judge, and

(c) the absence of opposition to the application in this Court.

Lack of opposition

10. Dealing with the last matter first, it is not the practice of this Court to grant leave to appeal merely because there is no opposition. It is a factor to be taken into account. Other relevant factors overwhelm the weight to be given to this factor in the present circumstances.

Objective circumstances

11. In relation to the first matter, namely the objective circumstances of the case, reliance upon these was misconceived. It is not the role of this Court to second-guess procedural directions given in the District Court. This Court should only embark upon a reassessment of objective circumstances if the applicant can demonstrate that such a reassessment is likely to show that the decision below was so manifestly unreasonable that it could not have been arrived at by the proper application of established principles.

12. Although the applicant did not formulate the test in this way, his submissions reflected an acceptance of such an approach: they referred to "the necessity" that the two proceedings be heard together for two reasons. He stated that as a consequence of the two factors, a separate hearing of each matter was "precluded": written submissions, par 5. To ensure that this was not the language of rhetorical flourish, it is necessary to identify the two factors relied upon. The first concerned the quantification of damages which will need to be allocated as between the two accidents. This factor involved no element of necessity of preclusion of alternatives. In the absence of evidence to the contrary, the Court should assume that the applicant was treated in respect of the 2004 accident before the 2007 accident occurred. If he required no treatment for three years, it is likely (though not inevitable) that his damages would be small. If he did require treatment, there will be medical reports referable to the first accident, which pre-date the second. It may be desirable that there be a contemporaneous assessment of the damages resulting from each accident, but there is no necessity in taking such a course. Indeed, the applicant may fail on liability in respect of the first accident. There may never be a trial in relation to the second accident.

13. The matter may be tested by asking what would happen if there were a third accident in 2011: would it be "necessary" for the trial to be deferred further until the injuries in respect of the third accident had been satisfactorily identified and quantified? Clearly, no "necessity " would require such a step. In any event, the applicant, somewhat inconsistently, submitted that quantification of damages could not occur in respect of the 2004 accident because a certificate of whole person impairment had not yet been obtained from a medical assessor under the Motor Accidents Compensation Act . If that were so, it would tend to demonstrate that there might be a common hearing in respect of damages in any event.

14. The applicant sought to avoid this apparent flaw by stating that the question of his own credit needed to be determined in respect of issues of both liability and quantum (the second factor relied on). This was said to preclude a separation of those issues, one from the other. Many cases involve issues of credit: it is not uncommon for issues of liability and loss to be separated. This Court knows nothing about the facts of the case, the nature of the evidence to be called, the so-called "credit" issues, nor any other aspect of the evidence to be called at the trial.

15. Three other factors should be taken into account in assessing whether the hearing date had, of necessity, to be vacated. One was the circumstance that the accident giving rise to proceedings occurred on 21 May 2004. The passing of seven years, without any explanation as to the reasons for such delay, militate strongly in favour of the trial commencing at the earliest available date. Secondly, the evidence before this Court does not entitle the Court to form the view that the only decision reasonably available to the trial judge was to vacate the hearing date. Thirdly, if the trial date were to be vacated, one would wish to know when, if both matters were to be heard together, a new hearing date could be expected, and with what degree of certainty. The trial judge could be expected to have a level of experience which would have allowed her to make some assessment of the further delay which would result from acceding to the applicant's request. This Court is entirely ignorant of such matters; nor did the applicant assist.

Challenge to reasons

16. The third category of grounds involved a challenge to the reasons given by the primary judge for her decision. There was no written decision, nor has this Court been provided with a transcript of her reasons. The only "evidence" relied on by the applicant is a handwritten note said to have been recorded contemporaneously with the decision. The note appears on a memorandum sheet bearing the name of the respondent's lawyers (not those of the applicant). It is set out in the judgment of Young JA at [38]. This Court was invited to infer that anything which did not appear in that note was a factor not taken into account by her Honour. Each of these factors must be addressed in turn.

17. First, it was said that the fact that there was no opposition from the respondent should have been important, if not determinative, both sides being represented by experienced personal injury lawyers. If the factual assumption concerning the lawyers were correct, the suggestion that her Honour failed to take it into account borders on the fanciful. In any event it has not been demonstrated to be so. In the alternative, her Honour may have had no knowledge of the experience or competence of the respective lawyers. The only evidence in that regard was an affidavit of the applicant's solicitor accepting a lack of diligent pursuit of his client's interests which would not have given her Honour confidence in that regard. Putting those difficulties aside, the handwritten summary of her Honour's reasons for rejecting the application, provides an inadequate basis for concluding that she was not conscious of the fact that the application was not opposed. The proposed finding is implausible and the supporting evidence insubstantial.

18. Secondly, it was submitted that the primary judge failed to take account of the fact that the trial would need to be adjourned in any event to obtain a medical assessment certificate.

19. The suggestion that such an adjournment might be necessary was identified in the affidavit of the applicant's solicitor, which was before her Honour, at paragraph 6. I would not be satisfied on the evidence that her Honour did not take that possibility into account. Further, there would presumably need to be an application for an adjournment to allow the assessment to take place. The reason given by the solicitor for not having undertaken the assessment was as follows:

"It had been hoped that given the nature of the injuries sustained, an assessment by the Authority of the Plaintiff's degree of permanent impairment would not be required, but the CTP Insurers have not conceded that threshold (as they are entitled to do), and those assessments need to be conducted."

20. The matter was set down for trial in April 2011. When the defendant's position became clear is not stated. From her knowledge of procedure in the District Court, her Honour may well have formed a view as to the prospects of an ajournment application. Given the absence of such an application at the stage the proceedings had reached, she may well have not expressed a view in her reasons. On the other hand, she did, apparently, note that the affidavits before her did not provide "details of extent of overlap of injuries between the two accidents".

21. In his written submissions, counsel for the applicant in this Court stated:

"The primary judge has posed that she would separate the hearing of liability to quantum, but then recognised that the credit matters precluded the separation of the 2004 accident claim into a hearing on liability and then, later, quantum...."

22. The basis of this submission was never made clear: it does not appear to be the summary of the reasons in evidence before this Court. It thus appears that the applicant may have had available to him a more complete understanding of the reasons than he condescended to provide to this Court. No finding can be made in that regard, because the submissions are not evidence: nevertheless, the submission is inconsistent with the inference that this Court has in evidence before it the totality of her Honour's reasons. On that ground alone, the challenge to her Honour's reasons should be rejected. Nor is the assumption that her Honour was advised of the possible need to adjourn the proceedings, but failed to take it into account made good. Whether her reasons mentioned the point is neither known, nor decisive.

23. Thirdly, it was submitted that the sequential hearing of the two matters would result in independent rulings on quantum and on "credit matters". This, it appears, would involve a waste of resources and the potential for inconsistent judgments.

24. These considerations involve forensic judgments which may be viewed differently from the perspective of different parties. Thus, it is unlikely that the plaintiff would obtain double recovery, although it is possible that inconsistent findings might result in what he considered to be under recovery. Again from the point of view of the plaintiff, a single trial might well be less expensive than two trials. Whether that would be so from the perspective of the defendants is unknown. The second defendant was not even before the Court to express an opinion. Nor is it clear why the credit issue should be determined in one matter. If the applicant were thought to have lied or exaggerated in respect of the first accident, it is by no means clear why that should affect the assessment of his evidence in respect of the second accident: it may do, or it may not, depending upon the circumstances.

25. No doubt this set of arguments could have been put to her Honour: whether or not it was, and if so in what terms, is not known by this Court. Whether her Honour addressed it in her reasons is not known. This challenge has little weight. That weight is further diminished once the uncertainty that there ever will be a trial in respect of the 2007 accident is acknowledged.

Conclusions

26. The well-known admonition of Jordan CJ in In re the Will of Gilbert (1946) 46 SR (NSW) 318 at 323, that "if a tight rein were not kept upon interference with orders of Judges of first instance, the result would be disastrous to the proper administration of justice", is often more honoured in the breach than the observance. However, this appears to be a paradigm case for its application. The reasons are threefold. First, one basis for this Court to stop a trial going ahead on the date fixed for hearing in the District Court would be a level of comfortable satisfaction that procedural unfairness ("injustice"), if not inevitable, was at least highly likely, whatever steps the trial judge might take to alleviate the situation. Applying that test, there was no evidential basis for reaching any such conclusion.

27. Secondly, assuming the first test were not satisfied, the applicant would need to demonstrate that even if a decision either way was open, the primary judge so misunderstood the circumstances, or the nature of her discretion, or both, that the judgment cannot stand. In some cases, the result itself may demonstrate such error; this is not such a case. Because the Court cannot be satisfied that it is informed of all the reasons given by the primary judge, there is, otherwise, no evidential basis for such a conclusion.

28. Thirdly, even if some kind of error were thought to be established there would have been strong discretionary reasons for refusing relief. This Court has no knowledge of a number of considerations discussed above, including the likelihood of proceedings in respect of the 2007 accident, the likely date of their commencement, when they might be ready for trial, how long the combined trials might take, the attitude of the putative defendant to a combined trial and when the District Court would be able to hear it. The failure of the applicant to address any of these issues disentitles him to relief.

29. For these reasons, I would have dismissed the application for leave to appeal.

30. YOUNG JA : Mr David Dubois was unfortunate enough to be involved in two serious motor vehicle accidents, one in 2004 and the other in 2007.

31. The present proceedings involve the 2004 accident. The plaintiff sued in the District Court in proceedings 5174 of 2007. In April 2011, a hearing was allocated for 5 September 2011 to take five days. A directions hearing was fixed for 7 July 2011. The plaintiff's solicitor did not attend, his excuse being that he had "wrongly diarised this as the date for arranging a settlement conference". The consequence was that the District Court continued to believe that the case was ready for trial.

32. In actual fact there were problems with the case proceeding to trial.

33. One of the problems was that it would be necessary at the trial to determine which of the plaintiff's present complaints were suffered in the 2004 accident and which were suffered or exacerbated by the 2007 accident. The 2007 accident is not yet the subject of court proceedings. There is currently before the Motor Accidents Authority an application for a certificate of exemption in respect of the 2007 accident so that proceedings can be commenced in the court and heard at the same time as the 2004 proceedings. That application has not yet been determined.

34. Furthermore, in respect of both the 2004 and 2007 accidents, the plaintiff's whole person impairment has not yet been assessed by the Motor Accidents Authority. This means, amongst other things, that even if the trial of the 2004 proceedings commenced in the District Court on 5 September, the trial would have to be adjourned at some stage so that the results of that assessment were before the court so that the judge could determine whether or not he or she should allow certain types of damages.

35. It is most unfortunate that representatives of the solicitors who, it would seem, were not sufficiently familiar with the case appeared when it was set down in April, and in July, the plaintiff's representative failed to attend and the other side's representative was unaware of the problems.

36. However, it should also be said that, at the time the hearing date was allocated, the plaintiff's solicitors anticipated that both actions could be heard together as a greater level of co-operation was anticipated with the insurer for the 2007 accident than actually took place.

37. As I have said, the trial was fixed for 5 September to take five days. On 31 August the plaintiff applied for an adjournment. The defendant consented. The application came before her Honour Judge Balla. Her Honour refused the application.

38. We do not have a transcript of the hearing before her Honour, nor do we have a full account of her Honour's reasons for judgment. All we have is a note taken by a solicitor which is as follows:

"Balla J reasons not to vacate hearing:

accident in 2004

matter was allocated a hearing date in April 2011

Affidavit did not provide details of extent of overlap of injuries between the two accidents

Affidavit did not provide reasons for delay in commencing 2007 accident

There was no evidence that the witnesses were unable to attend.

s 56 CLA

Prejudice from further delay"

39. It was agreed before us that those notes truly represented her Honour's reasons. However, we were also told that the prejudice referred to in the final bullet point was prejudice to the witnesses.

40. The motion for leave to appeal against her Honour's determination came before this Court as a matter of urgency at 9.30am on 2 September 2011. On that occasion, Mr E G Romaniuk of counsel appeared for the applicant and Mr P J Nolan of counsel appeared for the respondent. Mr Nolan's basic attitude was that he submitted to any order that the Court might make, but he showed that he was in sympathy with the order that the applicant was seeking.

41. The Court determined that it would hear the application for leave to appeal and the appeal by way of concurrent hearing as the matter had to be decided that day. After hearing counsel, the Court announced that it would grant leave to appeal, allow the appeal, set aside the orders made by Balla DCJ on 31 August 2011, vacate the hearing before the District Court commencing on 5 September and order that each party bear and pay their own costs of this application and appeal and those occasioned by the vacation of the hearing date. We said we would give reasons later and these are the reasons.

42. As noted in the authorities collected as note s 66.45 in Ritchie's Uniform Civil Procedure NSW , particularly Maxwell v Keun [1928] 1 KB 645 and Bloch v Bloch [1981] HCA 56; 180 CLR 390, 395, whilst it is seldom that an appellate court will feel justified in reviewing a decision to refuse an adjournment, the Court has power to review such an order and in certain circumstances it is its duty to do so. It will be its duty to do so if the order made below will defeat the rights of the parties altogether or even where, at least without fault, a vital witness ceases to become available such as happened in Petrovic v Taara Formwork (Canberra) Pty Ltd [1982] FCA 208; (1982) 62 FLR 451, 461 (Full Federal Court). It is of little value to multiply examples.

43. As the Full Federal Court said in Petrovic at 460, it is not sufficient that the Court of Appeal considers that an adjournment should have been granted, the applicant must show that refusal of the adjournment produced, in the circumstances, an injustice. It must be remembered too, that the decision is a discretionary judgment.

44. "Injustice" is a coloured word with pejorative overtones. What is meant is that the refusal of the adjournment must not set up a situation where there is a likelihood that there cannot be a fair trial unless that factor is outweighed by prejudice to the opposing party.

45. In making the balanced judgment required, a judge must also take into account the public interest that the judicial process must be just, cheap and quick.

46. Again this matter must be considered in a balanced way. Mr Romaniuk relied on what the plurality said in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, 214 at [102], that the objectives of the modern court rules do not require that every application for amendment (and by analogy, adjournment) should be refused just because it wastes costs and causes some delay. Whilst these are significant matters, they are not necessarily overriding considerations. I accept that submission.

47. There are a lot of unsatisfactory aspects about the conduct of this case including the selection of the material presented to the primary judge. Mr Romaniuk does not deny that there was dilatory conduct on the plaintiff's side of the record in preparing the case, but he puts that that matter appears to have been the reason why the primary judge refused the adjournment. She did not appear to take into account:

(a) the fact that both sides of the record, who were represented by experienced personal injury lawyers, considered that an adjournment was appropriate;

(b) the fact that the trial of the 2004 accident would have to be adjourned part-heard in any event; and

(c) the fact that, unless the two pieces of litigation were heard together, the question as to what damage was caused by the 2004 accident and what was caused by the 2007 accident, would have to be decided twice.

48. It needs to be said that it would not appear that her Honour was given as full an account of the difficulties as we were given. Mr Romaniuk said that that was because it was not felt, when there was agreement by the two sides that the only sensible course was to adjourn the trial, that costs should be wasted in preparing detailed affidavits. This is understandable, but it is also understandable that her Honour would become extremely concerned that the court was not being treated with due respect in the way in which this case progressed. It was understandable too that the District Court would take the attitude that it was not necessarily going to be dictated to by counsel, even counsel in concert. From time to time, litigation does miscarry and when it does, the key question is how there can still be a just, cheap and quick resolution of the dispute with justice to both parties. That is the key issue.

49. Although I have considerable sympathy with the course that the primary judge took, it does seem to me, on balance, that the primary judge should have proceeded on the basis that two competent lawyers both assured her that there could not be a satisfactory resolution of the disputes between the parties if the trial proceeded in the next week and that there could be if there was an adjournment. Despite any understandable unhappiness with the frustration of the court's management system and previous delays, in my view, the overriding factor in this case was ensuring there would be a fair trial of the 2004 and, if need be, the 2007 accident (it may be, of course, that the Motor Accident Authority does not give a certificate of exemption in respect of the 2007 accident so it doesn't come to trial but that is so much speculation).

50. Accordingly, I joined in the order giving leave to appeal, allowing the

appeal and vacating the hearing before the District Court on 5 September.

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