G S Smith v A J Cooper[2000] QDC 30

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal against a judgment entered against the appellants in Plaint 788/96 in the Magistrates Court at Southport on 9th April 1999 in accordance with published reasons given by her Worship Ms P Dowse SM dated 31st March 1999. The successful plaintiffs were neighbours of the defendants, and the proceedings the outcome of a regrettable series of disputes between neighbours. There was a cross-action, indeed it was the original proceeding, instituted by Mr Jason Smith against the Coopers, but it was determined they ought to have the carriage of proceedings. The damages awarded the Coopers were as follows:

“For Trespass

Repair of driveway    $5,000.00

Rubbish issue     $   500.00

Bar: roof & downpipe    $   500.00

  Fence & bar area   $   500.00

  Guttering & pipe   $   500.00

Driveway blockage    $   500.00

Front pillar     $   500.00

Electrical pole     $   500.00

Retaining wall     $   500.00

For Nuisance

Stormwater / pool filter    $1,000.00

Bar area pipe     $2,500.00

Sink smell      $   500.00

Pool water      $1,500.00

Storm water     $1,500.00

Filter noise     $   500.00

For injury to health    $7,500.00

Exemplary / aggravated damages  $5,000.00

Total:               $29,500.00 

2. [2]
   Her Worship further ordered the defendants (the Smiths) to pay the plaintiff’s costs in the main action set at $12,561.30 “and in accordance with the order of his Honour Senior Judge Hanger … the costs of the respondents (the Coopers) in District Court appeal no. 984/98 on 24.11.98 set in the sum of $2,346.50”. Interest was allowed at 10% from 20 June 1997.

3. [3]
   The basis of the appeal is the refusal by the Magistrate to accede to the appellants’ requests for adjournment of the trial on three occasions, on 23^rd, 25^th and 26^th November 1998. The appeal mentioned in the judgment was not the only one, as will be seen. It concerned an unsuccessful appeal against the first refusal of an adjournment.

4. [4]
   From the appellants’ point of view, severe difficulties suddenly arose for their conduct of the proceedings in the preceding week, when they were abandoned by their solicitor Mr Adamson, who (I was informed by the counsel on the appeal, Mr English) was the practitioner in Adamson v Queensland Law Society (1990) 1 Qd.R 498.  At this stage the trial was well under way.  With the agreement of both sides, the action had been set down for one day on 11 August  1998.  It was not completed then and was adjourned for a further two days of hearing commencing 22^nd October 1998.  This additional hearing time proved insufficient and there was a further adjournment to 23^rd November 1998 for five days of hearing. 

5. [5]
   On that date, the defendants were represented by a new legal team of counsel and solicitor, who sought an adjournment on the basis that they could not prepare the defendants’ case without access to Mr Adamson’s file, which was being withheld. There was a flurry of activity involving his Honour Judge Hanger with a view to obtaining access to the file. His Honour eventually ordered production of the file upon the defendants’ providing security in the amount of $15,000 to protect Mr Adamson’s fees (which I was told did not relate only to the Magistrates Court action). Her Worship, understandably, was anxious to know what was going to happen from the point of view of continuation of the trial, on which she placed a high priority for reasons one would have thought obvious; she noted that his Honour had not allowed any time for provision of the security, which the appellants contemplated would be by bank guarantee. The defendants’ approach to his Honour to indicate a time to be allowed to the defendants failed to persuade his Honour to allow a defined time. In retrospect, it is unfortunate his Honour was not asked to make an order which would have permitted the production of the file in court for purposes of allowing the trial to proceed: see Jamieson v. Allen (1863) 2 W&W(E) 47; Bolster v. McCallum (1966) 85 WN (Pt.1.) (NSW) 281; Re: McKay and Bell (1872) 3 AJR 988; Marriage of Rhode (1983) 9 Fam LR 159; R v Storer (1993) 65 a Crim R 130; Marriage of Conroy (1990) 103 ELR 223; Elders Rural Finance Ltd v Tapp (1992) 106 FLR 441. The learned Magistrate came under criticism from the defendants’ then counsel for what he depicted as vacillation when, more than once (in his understanding) she intimated that an adjournment was unavoidable, but then, after further consideration, refused one. 

6. [6]
   The anxiety of new legal representatives brought in at the last moment to have access to the former solicitor’s file is no less than would be expected of prudent practitioners. After her Worship intimated there would be no adjournment, apparently taking the view that nothing serious was being done (nothing more than general inquiries to ascertain what the bank might require) about getting a bank guarantee, the defendants withdrew their instructions. Her Worship then made statements to Mr Graeme Smith (the only one of the defendants who had spent a significant time in court during the trial) which must have made it perfectly clear to him that the trial was going to proceed, that he ought to get advice, and that, as things stood, it was up to him to protect the defendants’ interests against the plaintiffs’ claims. Mr Smith withdrew from the court and the trial proceeded. This meant that although Mr Cooper had been cross-examined at considerable length, Mrs Cooper was not cross-examined at all. Left essentially with their evidence alone, and an adverse impression of Mr Graeme Smith from his demeanour and actions during the trial, the Magistrate went ahead, ultimately giving judgment. She proceeded on the basis of the favourable impression formed of the plaintiffs and their evidence.

7. [7]
   Although Mr English on the appeal asserted it was unsatisfactory to contemplate the series of “round sum” amounts in the award of damages, there was, in the appeal, no attack, reasoned or otherwise, upon the learned Magistrate’s reasoning “on the merits”. There was no case presented that the evidence could not support the judgment.

8. [8]
   A tribute to Mr English is in order for the realistic approach he adopted to his task on the appeal. In essence, he submitted that an adjournment ought to have been granted as requested more than once from 23^rd November 1998 to 26^th November 1998 and that everything which was done from that point ought to be set aside. Although the appeal documents sought a new trial before another Magistrate, complaining of bias on her Worship’s part against the defendants, or against Mr Graeme Smith at least, Mr English did not seek to maintain a charge of bias. I think that was correct. It seems inappropriate to regard as an indication of bias by a judicial officer the formation of an adverse view of a party reached on the basis of the party’s conduct in the course of the subject trial. It must often happen that a presiding judicial officer is justifiably moved in that way by events in his or her court. That does not mean the judicial officer will be distracted from proceeding in the trial according to law and reaching honest findings on the evidence. 

9. [9]
   So, the essential question for this court in the appeal became whether the action ought to be returned to her Worship to permit her to proceed when the defendants might be ready to do so. As to this last imponderable, the orders sought in the appeal documents included the fixing by this court of an appropriate time to allow the defendants to obtain a bank guarantee to protect Mr Adamson’s fees, so that documents would become available from him. I was most unimpressed to discover that, after all the time that has passed, the defendants are apparently no closer to arranging that bank guarantee. Further, it seems to me that there are not likely to be any documents at all needed by the defendants which could not be obtained otherwise than by access to Mr Adamson’s file. The court file is available, and the numerous exhibits tendered at the trial (which I was told numbered in excess of 40); I am confident that copies of whatever documents the plaintiffs might have could be obtained, if necessary by a court order, on payment of the plaintiffs’ expenses in that regard. Other documents mentioned by Mr English could, I would think, be obtained from the Gold Coast City Council. My conclusion that access to Mr Adamson’s file, while convenient, can no longer be regarded as necessary does not detract from my approval of the attempts of Mr Bryson of counsel and Mr Senior to obtain access to the file in November 1998; presumably the relevant documents were conveniently collected there, and there was little time available to permit an exercise of obtaining the documents from other sources.

10. [10]
    The attraction of the appellants’ case is the simple proposition that a judgment went against them without their having an opportunity or a proper opportunity to put their case. I regard that as a more troubling scenario in a dispute between neighbours involving ordinary members of the community than it might be in a dispute involving commercial people.

11. [11]
    The appeal comes down to this court’s determination whether the particular circumstances of the case prevail over the concern that the defendants should have a fair opportunity to present their case. On reflection, I do not accept Mr English’s point that Judge Hanger’s order, which was that “a security of $15,000 to the satisfaction of the Registrar” be provided before Mr Adamson had to release his file, should have been taken by her Worship as a binding intimation that some appreciable period of time ought to be allowed for providing security, the trial not proceeding in the meantime. If it matters, his Honour ’s decisions appear to me to indicate a disposition not to delay the trial and not to set a time to be allowed the defendants, during the running of which time the trial should not go on. Particularly in circumstances where no progress was being made towards obtaining a bank guarantee (the only security apart from cash acceptable to the Registrar), I think her Worship was justified in refusing to grant an adjournment on this basis. Effectively, the defendants did get the benefit of time as the week of 23^rd November 1998 unfolded. In the circumstances, I can see no justification for delaying the plaintiffs for an uncertain period while the defendants worked out arrangements with legal representatives on their own side.

12. [12]
    I find it convenient to quote extensively from the appellants’ outline of argument in which relevant principles and authorities are helpfully set out.

“25. The Respondents did not put before the Court any cogent evidence to demonstrate that they would suffer serious injustice should the adjournment be granted.

26. Where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted unless in turn this would mean serious injustice to the other party. Myers – Myers 1969 W.A.R 19 (Jackson J), Wannal Pty Ltd -V- Jerico Nominees Pty Ltd and Cooper (1983) S.R. (W.A) 297 (Judge Kennedy)

27. An appellate court will rarely interfere with a trial judge’s exercise of discretion whether or not to grant an adjournment of a trial. Bloch-v-Bloch (1981) 180 C.L.R. 390 (H. C.) per Gibbs CJ, Murphy, Aickin and Wilson JJ at 395-6.

28. 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 appellant court is satisfied would be an injustice to one or other of the parties the appellant court has power to review such order and it is its duty to do so.  Maxwell -V- Keun (1928) 1 K.B. 645  (C.A.) per Atkin L.J. at 653.

29. This statement of Atkin J. has won general acceptance. Bloch -V- Bloch (1981) 180 C.L.R 390 (H.C.)

30. In Sali -v- SPC LTD (1993) 67 A.L.J.R. 841 (H.C.) The Court brought further factors into the equation for exercising discretion for an adjournment: -

1. (A)
   In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interest of the parties.  Brennan, Deane & McHugh JJ at 833-4.

2. (B)
   Litigation is not merely a matter for the parties but is one for the court and the need to avoid disruptions in the court’s lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard.  Toohey & Gaudron JJ at 849.

31. The request to adjourn was made as Mr. Adamson’s retainer had been terminated and he refused to hand over his file to Mr. Senior unless he was paid a substantial sum of money which appeared to be exorbitant.

32. Neither Mr. Senior nor Mr. Bryson who were retained by the Appellants were in possession of any part of Mr. Adamson’s file. They could not properly and professionally represent the interests of the Appellants in the action.

33. In Hayes  -V- Hayes 1934 St.R.Qd. 219 (F.C.) at 223-4 the Full Court of Queensland followed the rule – “This Court never interferes with the discretion of a judge below in arranging his list or fixing the time for trying any case before him, unless that discretion is exercised so as to result in a denial of justice.”

34. It is essential to the fair trial of an action that all parties are able to present their case as fully as necessary and within the limits if the law. McColl –V- Lehmann 1987 V.R. 503 (Kaye J) at 506.

35. It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case.

36. In not adjourning the further hearing of the trial at that juncture when the Court was apprised of the Appellant’s predicament Her Worship denied the Appellant’s their fundamental right of presenting their case.

37. A litigant who, through no fault of his, is prevented from calling his material witnesses is entitled, subject to terms of costs, to an adjournment as a matter or justice. Orr  -V- (1923) 2 K.B. 432 ( D.C) per Lush J at 439 with whom Salter J agreed at 446.

38. The Magistrates Courts Rule number 196 contained the words – “or otherwise” in its formulation - “... and may also in any action or matter at any time and from time to time adjourn the Court or the hearing or further hearing in such manner and upon such terms as to costs or otherwise as to the Court seems fit.”

39. Her Worship therefore had the power when adjourning the further hearing of the action to impose a strict temporal element on the Appellants providing to the Registrar the security ordered by Judge Hanger.”  

13. [13]
    I accept the foregoing principles. It is the case, however, that each particular case depends on its own facts. Thus, in the Victorian case, the proceedings were ones in which the party refused an adjournment faced a penalty. In most of the cases the relevant trial or hearing was not underway. There is no suggestion the appellants did not have all their witnesses available. The instant trial was into its fourth day and third “instalment”, a scenario which inevitably makes for enormous difficulties for the presiding judicial officer, and disrupts the orderly conduct of the court’s list. As to the first point made in the quotation, her Worship’s reasons amply demonstrate the adverse impact that their relations with the defendants had upon Mr and Mrs Cooper. I would infer this continued throughout the trial and will continue at least until the litigation is concluded.

14. [14]
    Mr Cochrane, for the Coopers, referred me to Queensland v JL Holdings Pty Ltd (1997) 71 ALJR 294, 297 which is authority for the proposition that the notion that costs are a sufficient balm for innocent litigants who are frustrated or delayed by their adversary’s “shilly-shallying” may not be of general application except among commercial litigants, and the like.  (That case concerned the High Court’s disapproval of the disallowance of an amendment at a time before the trial had been set down.)

15. [15]
    The situation of a court proceeding in the absence of defendants is not unusual. Indeed, it was expressly contemplated by r.192 of the Magistrates Court Rules as they stood at the time. It seems less strong a thing to proceed in the absence of a defendant who walks out on the fourth or a later day of a trial (even one who has dispensed with his legal representation) than to proceed in the absence of a defendant who has not turned up at all. In this case, her Worship had the advantage of a good insight into the defendants’ case from having observed the cross-examination of Mr Cooper.

16. [16]
    I found this a difficult case in which to reach a decision, given the potency of the consideration that the interests of justice require that the defendants have a reasonable opportunity to present their case. Unattractive as the thought of Mr Graeme Smith being left to his own resources (once he dispensed with his legal representation) is, the fact is that he had the opportunity to present a case and, further, that her Worship would clearly have allowed an indulgence to permit further legal advice to be obtained. What she would not countenance was further delay of unknown duration while Mr Adamson’s file was retrieved. When the case is understood in this way, the respect which an appeal court has to give to a primary tribunal’s discretion to grant or refuse an adjournment comes into play. The Magistrate did not rely on irrelevant considerations or ignore relevant ones. While it is unsatisfactory that the defendants were left without access to optimal resources, it was their decision to take the dangerous course of presenting no case at all. It is a very close question, but, considering other relevant interests, including the plaintiffs’ and the public’s (in the orderly disposition of the business of the courts) and the interests of the whole body of litigants, I cannot persuade myself that the requirements of justice are so far outraged by what has happened in this case that the appeal ought to be allowed and a further “instalment” of the trial embarked on by her Worship.

17. [17]
    In the circumstances, the appeal should be dismissed with costs.