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

Young JA (Giles JA agreeing):

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) 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.

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