[2024] NSWCA 154

Dogra v Dogra (No 2)

(1) Vacate Order 2 made on 27 May 2024 and in lieu thereof order that the appeal be listed for a one day hearing before the Court of Appeal on Monday 16 September 2024. (2) Confirm Orders 3-8 made on 27 May 2024. (3) The second respondent to pay the costs of the hearing today, 21 June 2024, together with any costs thrown away by reason of the making of Order 1 above.

Catchwords

APPEALS — Procedure — Adjournment — application for adjournment — no issue of principle.

Judgment

[1]
PAYNE JA: This matter was before me on 27 May 2024 in the referrals list. I dealt on that day with a notice of motion seeking dismissal of the appeal or, in the alternative, security for costs. I dismissed that motion. I did, however, make case management orders as follows:
[2]
On 18 June 2024, the solicitor for the second respondent, Mr Capsanis, exercised the leave to apply to chambers granted in Order 8 above.
[3]
On 21 June 2024, Mr Lipp appeared on behalf of the second respondent and read the affidavit of Mr Capsanis sworn 21 June 2024. In essence, Mr Capsanis has retained Mr Golledge SC to appear on the appeal. However, Mr Golledge is not available on the date which had been fixed. Mr Lipp submitted that although it was an indulgence, his client wished to proceed with the senior counsel of his choice at the appeal. The appellant, represented by Mr Mo, consented to the refixing of the appeal date in the week commencing 16 September 2024. Mr O’Dea, who appeared for the first respondent, opposed the vacation of the existing date. However, he very responsibly accepted that he could point to no real prejudice if the hearing took place in the week commencing 16 September, so long as moving to that date did not affect the other orders for preparation which I had made.
[4]
Whilst I was reluctant to move the date for the hearing, I was persuaded that I should do so. This was because:
1. (1)
  all parties are available in the week commencing 16 September 2024;
2. (2)
  the prejudice to the other parties is small or non-existent and may be ameliorated by an award of costs; and
3. (3)
  the assurances given to me by the appellant and second respondent that there was no reason to think that the orders for preparation I made would not be complied with if the hearing date was changed;
4. (4)
  the Court is able to accommodate a hearing on 16 September 2014 without unduly affecting other litigants.
[5]
It should not be thought that the Court will readily move a date for hearing of an appeal based on the availability of counsel. In this case, however, I was persuaded that I could do so affording fairness to these parties and without unduly affecting other litigants.
[6]
Accordingly, on 21 June 2024, I made the following orders:
1. (1)
  Vacate Order 2 made on 27 May 2024 and in lieu thereof order that the appeal be listed for a one day hearing before the Court of Appeal on Monday 16 September 2024.
2. (2)
  Confirm Orders 3-8 made on 27 May 2024.
3. (3)
  The second respondent to pay the costs of the hearing today, 21 June 2024, together with any costs thrown away by reason of the making of Order 1 above.