Magjarraj v Asteron Life Limited

HODGSON JA : The court is dealing with an application for leave to appeal from a decision of Barrett J delivered on 15 December 2009.

When the matter was called Mr Ardino, who had been instructed for the applicant, told us that he had been attempting to contact the applicant over the last two weeks but had been unable to do so, and did not consider he had instructions that would enable him to make further submissions in the matter. Further, he indicated to the Court that he would rely on the written submissions already put to the court.

The decision of Barrett J was to dismiss the proceedings in circumstances set out in the judgement of Barrett J of 15 December 2009, which I will not repeat.

Broadly it is submitted that leave to appeal should be granted because the proceedings were dismissed in circumstances where the applicant had communicated to the judge that he was unable to appear by reason of illness, and had supported that with a medical certificate from a doctor.

It is said that the primary judge erred in saying, in effect, there was no application for an adjournment properly before him, and not being satisfied that a ground had been made out to grant an adjournment. In my opinion the material does not suggest that the primary judge was in error in those respects or in any other respect. It is not an appropriate way to apply for an adjournment to send a facsimile to the judge and to the opponent; and, whilst a judge may treat that sort of communication as amounting to an application, there is no obligation on the judge to do so.

In the circumstances set out in the primary judge's judgement, I do not see any possibility of error being established in so far as the primary judge concluded that he was not satisfied that the applicant was unable to attend the Court, and was not satisfied that a ground had been shown for an adjournment and for not proceeding to deal with the case.

In those circumstances, in my opinion the application for leave to appeal should be dismissed with costs.

MACRFARLAN JA: I agree.

HODGSON JA: The application is dismissed with costs. oOo