Allchin v Hunter Water Corporation

THE COURT: The applicant, Mr Craig Allchin, seeks leave to appeal (and to the extent necessary an extension of time for the making of this application) from the decision of Weber DCJ on 30 April 2024, dismissing proceedings the applicant had brought in the District Court of New South Wales against the respondent, Hunter Water Corporation, in which the applicant claimed damages for personal injury.

The applicant’s claim for damages related to injuries allegedly suffered by him in mid-March 2020 after falling off a sewer inspection pit or manhole when walking along the nature strip in what he said was a poorly lit area in Lemon Tree Passage, Port Stephens. The applicant alleged that the respondent had negligently maintained the pit or manhole. The respondent denied liability and further alleged that any injury or disability was wholly or substantially caused by pre-existing matters.

The circumstances in which the proceedings were dismissed (without a concluded hearing on the merits) are set out below. The applicant raises two grounds of appeal in his draft notice of appeal: first, that the primary judge erred in proceeding on the basis that r 29.7(4) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) conferred power to dismiss the proceedings and, second, that the primary judge’s refusal to adjourn the trial on the applicant’s application (after his legal representatives’ instructions had been terminated midway through the second day of the hearing) was unreasonable and plainly unjust.

The summons for leave to appeal was heard concurrently with the appeal itself, the compass of the application for leave being co-terminous with the appeal and requiring consideration of the merits of the appeal. For the reasons that follow, leave to appeal should be refused. Were leave to have been granted, the appeal would be dismissed.

At the outset, it should be noted that there was some debate at the concurrent hearing as to whether leave is in fact required (namely, as to whether the decision was interlocutory in nature), the applicant submitting that it may be argued that the order was made on an application for summary judgment within the meaning of the rules and there being some old English authority to the effect that the effect of a judgment dismissing a plaintiff’s claim for failure to appear at the hearing “will be the same as if the action had been dismissed on the merits” (see Armour v Bate [1891] 2 QB 233 (Armour), footnoted in AV Ritchie, Ritchie’s Uniform Civil Procedure New South Wales (LexisNexis Butterworths) (Ritchie’s) at [29.7.15]). However, the decision of Lord Esher MR in Armour was as to the form in which the judgment dismissing the proceeding in that case should be drawn up (there being a distinction prior to the Judicature Act 1873 (UK) between the procedure adopted in the Common Law Courts and in Chancery); and an issue had arisen as to the effect of the substitute rule applicable after the Judicature Act when there was default of a plaintiff when a cause was called on. It was held that the judgment should be drawn up “stating that the action was dismissed for want of appearance of the plaintiff at the trial”. Insofar as Lord Esher went on to say that the effect of such a judgment was the same as if the action had been dismissed on the merits, this was in the context of the statement that it would give the defendant “the costs of the action, and of all the issues that were to be determined between him and the plaintiff” (i.e., there focussing on the costs consequences of the judgment dismissing the proceedings for want of appearance).

Counsel for the applicant accepted that there was a tension between the suggestion that the dismissal of the proceedings was a final judgment (such that no leave to appeal was necessary) and the submission that the submission by the applicant that if he succeeds on the appeal on ground 1 the appropriate order is remitter to the District Court for a re-trial, there having been no decision on the merits (AT 9-10).

We are of the opinion that leave is required, as the dismissal of the proceedings was an interlocutory, not final, decision. No res judicata or issue estoppel arises (as Counsel for the respondent ultimately conceded – see at AT 17) since there has been no determination of the applicant’s claim on the merits. That points against the grant of leave to appeal. Although it was submitted for the applicant that it would be in the interests of the just, quick and cheap resolution of the real issues in dispute for leave to be granted (on the basis that if the appeal succeeds the matter would be remitted to the District Court, where some evidence has already been taken), any remitter would be for a new hearing; not for the resumption and continuation of that which was commenced before the primary judge.

While the respondent accepts that this case raises a point of principle with respect to the construction of r 29.7 and that this is a matter of some practical importance on which there is no direct Court of Appeal authority, the respondent submits that the application for leave should be dismissed on the basis that the decision of the primary judge was correct.

We accept that the issue raised by ground 1 raises a point of principle. However, that is only one of the considerations to be taken into account when determining whether to grant leave. It remains open to the applicant simply to bring fresh proceedings for the same relief against the respondent. In such a case, litigants should not be encouraged to waste costs and the resources of the Court in leave applications of this kind. As the applicant himself points out, this matter has already been before three judges of this Court (albeit on applications by the respondent that the appeal proceedings be dismissed for want of due despatch and alternatively as incompetent; see Allchin v Hunter Water Corporation [2024] NSWCA 290; Allchin v Hunter Water Corporation (No 2) [2024] NSWCA 315; Allchin v Hunter Water Corporation (No 3) [2025] NSWCA 75). The focus should be on the just, quick and cheap resolution of the real issues in dispute rather than ongoing disputes as to interlocutory issues. Moreover, when the merits of the applicant’s argument are taken into account, the balance falls squarely against the grant of leave.

Leave to appeal will be refused.

It is necessary to outline, by reference to the transcript of the proceedings, what occurred when the hearing of the applicant’s claim commenced in the District Court before the primary judge on 29 April 2024. The applicant was at that stage physically in Court and was represented by Mr Khoury of counsel, who was instructed by a solicitor from CMC Lawyers. The legal representatives had apparently been retained following a pro bono referral.

In short opening submissions, Mr Khoury informed his Honour that there was a liability expert (Mr Robert Fogg) and two sets of experts: occupational therapists and orthopaedic surgeons. Those sets of experts had met in conclave. Mr Khoury foreshadowed that the result of the conclaves was not in the applicant’s favour and anticipated the making of an application to cross-examine the applicant’s own expert witnesses (see 29/4/24; T 2). His Honour at that stage expressed the preliminary view that if the conclave process had produced unanimity it would not be appropriate for one party to attempt to break that unanimity, but indicated that he would deal with such an application if and when it was made (29/4/24; T 3).

The applicant was the first witness called to give evidence. In the course of his examination in chief, various medical reports and other exhibits were tendered and admitted without objection. No joint expert reports were tendered. After a morning adjournment, the applicant’s cross-examination began. It continued throughout the first day of the hearing, with a break over lunch and a short break in the afternoon. The cross-examination continued on the second day of the hearing (at which time the applicant was still represented by counsel and solicitors). At the conclusion of cross-examination, there was some re-examination of the applicant by his Counsel.

While the applicant was still in the witness box, there was an exchange between the primary judge and counsel as to the estimated duration of the hearing (see 30/4/24; T 84) and then as to the remaining witnesses. During the course of that exchange, Counsel for the respondent, Mr Griscti indicated that he did not require any of the joint experts for cross-examination. Mr Khoury indicated that the applicant’s liability expert, Mr Fogg, was available and said that there was no need to cross-examine any of the experts other than Mr Fogg. The applicant interjected and said “No, I object to that. I mean, I need to be cross-examined”, which in context must have meant that he believed that one or more of the joint experts needed to be cross-examined. His Honour then excused the applicant from the witness box, the applicant indicating that he was going to talk to his Counsel and saying “Okay, well, I’m not going to let him tell you something …” (suggesting that he proposed to give instructions to his counsel as to something not to be disclosed to the court).

There was then a short adjournment. When the matter resumed, Mr Khoury informed his Honour that his brief, and the brief for his instructing solicitor, had been terminated, with the following exchange taking place:

Mr Fogg, who was giving evidence by audio visual link, was then called. At that point, Mr Griscti observed to his Honour that there appeared to be another witness also on the screen (a Ms Urbanek, one of the occupational therapists who had examined the applicant) but said that he did not require her for cross-examination. The applicant then objected (it seems to the prospect that Ms Urbanek would not be required for cross-examination) and there was the following exchange (30/04/24; T 87):

The applicant made a number of further complaints: that he had not consented to the conclave report and was not given any notice of the conclave report; that, if the registrar had issued the conclave report, it was against the rules and that it had not been done through the judicial process; and that he thought there should be a retrial and that the primary judge should be disqualified from presiding in the matter, suggesting bias in the way that the judge had spoken to him.

When the primary judge indicated that he would excuse Ms Urbanek, the applicant again objected and informed his Honour that he wanted to cross-examine her. The applicant complained that he was being denied natural justice and procedural fairness. After some further exchanges with his Honour, cavilling with the proposition that he could not cross-examine his own witness, the applicant again sought an adjournment (30/04/24; T 89):

Ms Urbanek was formally excused and cross-examination of Mr Fogg by the respondent’s Counsel began. During the course of that cross-examination, the applicant objected that Mr Griscti was leading the witness and argued with the judge as to whether he was allowed to object on the basis that Counsel cross-examining was asking leading questions. There was then the following exchange (30/04/24; T 92):

At that point it appears that the applicant left the courtroom. Mr Griscti indicated that he was a bit unsure how to proceed and his Honour made reference to the rules in relation to a party ceasing to appear. Mr Griscti then completed his cross-examination of Mr Fogg, which concluded at 12.04pm (30/04/24; T 96).

After this, there was discussion between Mr Griscti and his Honour as to the rules that might apply when a plaintiff ceased to appear. Mr Griscti referred to r 13.6 (which provides a procedure whereby, if there is no attendance by or on behalf of a plaintiff at a hearing of which the plaintiff has had due notice, the hearing may be adjourned and a direction given that the plaintiff be notified that if there is no attendance by or on its behalf at the adjourned hearing the proceeding may be dismissed; and for the dismissal of proceedings in those circumstances). His Honour referred to r 29.7(4) (including the commentary in Ritchie’s at [29.7.15]) and expressed the opinion that this sub-rule was not confined to only the moment that the trial was called on. There was then a short adjournment following which Mr Griscti sought an order pursuant to r 29.7(4) that the proceedings be dismissed and his Honour gave oral ex tempore reasons dismissing the proceedings.

In the course of those reasons, his Honour said:

His Honour noted that the application for dismissal was made pursuant to r 29.7(4) but said that in his view such relief may also be available to the Court under r 13.6 (though we interpose to note that this would have required an adjournment of the proceeding and at least 5 days’ notice of an adjourned hearing date, so it could not have applied on the day). His Honour said that, while 29.7(1) seemed to contemplate that the rule was directed to the position of a plaintiff who fails to appear when the matter was initially called on, sub-r (4) did not. His Honour considered that it would be strange if a different outcome could apply to a plaintiff who never appears from that applicable to a plaintiff who ceases to appear of his or her own volition.

As noted above, his Honour dismissed the proceedings. An order was made that the applicant pay the respondent’s costs.

The applicant’s draft notice of appeal raises the following two proposed grounds of appeal, as adverted to above:

Part 29 of the UCPR (headed “Trials”) contains the relevant rule the subject of this application (r 29.7), which provides:

The applicant contends that, properly construed, r 29.7(4) is not available where a plaintiff appears at the commencement of the trial (“when the trial is called on”) but then is absent or absents himself or herself while the trial is ongoing. The applicant submits that in those circumstances the court may proceed with the trial generally and treat the plaintiff’s case as closed and then dispose of the proceedings on the evidence and submissions before it, including any evidence and submissions from the opposing party, but that it is not open to the court simply to dismiss the proceedings under r 29.7(4). The applicant notes that the course of treating the plaintiff’s case as closed and proceeding to a judgment on the merits was in essence the approach adopted by Henry J in The Estate of Alberto Magri [2022] NSWSC 873 (Magri) (see also Magri v Allan (No 2) [2022] NSWSC 1779) and Jacobson J in Wilson v Alexander [2003] FCA 183 (Wilson). The applicant accepts that in those circumstances there would be a final judgment on the merits and it would not be open to him to bring a fresh proceeding seeking the same relief against the respondent.

In support of that construction, the applicant relies on the following textual and contextual matters.

First, as to the text of r 29.7, the applicant argues that the words “when a trial is called on” are words of limitation that apply to the rule as a whole (including sub-r (4)). It is submitted that r 29.7(4) operates only at one temporal point, that being when the trial or hearing is first “called on”; not later. In this regard, the applicant cavils with the suggestion in some of the cases (such as Magjarraj v Asteron Life Limited [2009] NSWSC 1433 (Magjarraj)) that a trial may be called on more than once during the course of the hearing but says that, even if the expression is construed more broadly (to include whenever a part-heard hearing is resumed), the rule was not enlivened here since he was present at the commencement of the second day of the hearing and only left on the morning of the second day after his cross-examination had concluded (at a time when the primary judge was still in Court).

The applicant submits that there is a further express textual indication supporting his construction, noting that sub-r (4) applies only where the plaintiff does not “appear” (cf sub-r (2), which applies if any party is “absent”). The applicant draws a distinction between a plaintiff not appearing in the first place and a plaintiff absenting himself or herself during the course of the hearing. The applicant says that, in this way, “absent” in sub-r (2) may be construed differently from, and harmoniously with, “appear” in sub-r (4). On this construction, the applicant submits that when he absented himself from the courtroom sub-r (2) was engaged but not sub-r (4). Further, the applicant attaches significance to the fact that sub-r (2) provides that the court may proceed with the trial or it may adjourn; it does not provide simply for a dismissal.

Second, the applicant points to the context in which r 29.7(4) is found (namely, Part 29 of the UCPR). The applicant notes r 29.4 (which provides that proceedings ought to be listed for trial generally on all questions and issues) and submits that this r 29.4, together with s 91 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act), evinces a statutory intention that a judgment at or following a trial should be a final judgment on the evidence.

The applicant says that this statutory intent is most readily seen in rr 29.9 and 29.10, which together provide a procedure by which the opposing party may make a no case to answer application at the close of a plaintiff’s case. Reference is made to Sterne v THFE Pty Limited t/as Tweed Health For Everyone Superclinic [2022] NSWSC 450 where Beech-Jones CJ at CL, as his Honour then was, referred to the consequences of elections made by the parties in those circumstances (at [44]), namely that there may be a dismissal of the proceeding (r 29.9(1)), which would not give rise to a cause of action estoppel, or a judgment (r 29.10), which would do so. The applicant submits that, for present purposes, there is little difference between a plaintiff declining to argue a question (on a no case to answer application) and a plaintiff leaving the courtroom when that argument arises. The applicant argues that to read r 29.7(4) as conferring a power simply to dismiss a proceeding in the latter circumstance undermines the procedure specifically mandated in rr 29.9 and 29.10.

The applicant also points to the desirability of finality of litigation (referring in this context to Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116). The applicant contends that the course of action now available to him (since the dismissal of the proceedings does not give rise to any res judicata) of bringing fresh proceedings against the respondent for the same relief (which he could not do if the primary judge had adopted the approaches of Henry J and Jacobson J and had ultimately entered judgment for the respondent or if the respondent had instead made a successful application under rr 29.9 and 29.10) indicates that r 29.7(4) should be construed narrowly. It is submitted that to read r 29.7(4) as conferring a power simply to dismiss a proceeding, as the primary judge did, undermines the statutory intention that trials ought generally to conclude in final judgment.

Thus, the applicant contends that there was legal error in the House v The King sense in that r 29.7(4) did not confer the power purportedly exercised (House v The King (1936) 55 CLR 499; [1936] HCA 40).

The respondent submits that the words “when a trial is called on” are not words of limitation but are words of description (AT 18) and are not confined to the instant that the trial commences but, rather, encompass times when a trial is called on at any time during the course of a hearing.

The respondent points to Magjarraj where Barrett J, as his Honour then was, in a case where the plaintiff, who was legally represented, appeared on the first day of hearing and was in cross-examination when he failed to appear for the second day and instead sent an “unpersuasive” medical certificate with a covering letter which included complaints regarding his lawyers referred to the trial being called on “at 10am today and again at 2pm today” (the second day of the hearing) and dismissed the proceedings (at [17]). The respondent submits that Barrett J clearly considered that UCPR 29.7 was applicable. In his judgment, Barrett J referred to r 12.7(1) of the UCPR (which deals with failure to prosecute with due despatch) and r 29.7 but also expressly noted the discretion both under those rules “and more widely by reference to the inherent jurisdiction to control proceedings” to order that these proceedings be dismissed.

The respondent points to the purpose of r 29.7 (noted by Henry J in Magri as being the efficient despatch of court business). The respondent accepts that in Magri her Honour granted the defendants’ application to proceed with the hearing but places weight on the fact that her Honour regarded r 29.7 as having been engaged. The respondent also refers to Shaw v Official Trustee in Bankruptcy [1999] NSWSC 258, where Hamilton J ordered the dismissal of proceedings under the former r 34.5 of the Supreme Court Rules 1970 (NSW), following the failure by a plaintiff to appear on the second day of hearing.

The respondent accepts that in Wilson (which concerned the similarly worded O 32 r 2(1) of the then Federal Court Rules (Cth) which conferred discretion on the Court to make orders, “if, when a proceeding is called on for trial, any party is absent...”), Jacobson J held that the applicant (who absented himself after two unsuccessful adjournment applications) was not absent when the matter was called on for trial and therefore the rule was not enlivened ([49]). His Honour treated the applicant as having closed his case and, following the respondent’s Counsel addressing him on the evidence, dismissed the proceedings with costs.

The respondent submits that the construction of r 29.7 in accordance with the Supreme Court authorities referred to above is to be preferred to that in Wilson.

The respondent accepts that r 29.7(1) is the “gateway” provision for the exercise of the discretion conferred by the balance of the rule and that it is expressly framed in temporal terms. However, the respondent submits that, during the course of a hearing, a trial may be called on many times. The respondent argues that the express words of r 29.7(1) do not impose any limitation such that its operation is confined to when a trial is “first” called on, and says that had that been intended then it could have been made plain. The respondent says that it does not assist the applicant’s position to distinguish the potential operation of sub-rr 29.7(2) and 29.7(4), because both these rules are subject to the same gateway provision (r 29.7(1)).

The respondent submits that its construction of r 29.7(4) is consistent with the accepted objective of r 29.7 (being to secure the efficient despatch of the court’s business) and with the heading of the rule (“Procedure to be followed if party is absent”).

The respondent argues that the alternative interpretation pressed by the applicant gives rise to unsatisfactory consequences and would unfairly limit the remedies available to the non-absent party. The respondent says that there is no good reason to distinguish the position of a party who has failed to appear at the commencement of a hearing from that of one who abandons it after it has commenced. Further, the respondent argues that the approach adopted by Jacobson J in Wilson is apt to give rise to potential injustice, in that his Honour had there refused the respondent’s application to proceed in the applicant’s absence but the respondent was able to address having regard to the evidence. The respondent says that it is conceivable that there may be circumstances where the evidence is such that a defendant is at a disadvantage in not being able to proceed in the plaintiff’s absence.

The respondent submits that there is nothing in the broader context of r 29 that supports the construction of r 29.7 for which the applicant contends; accepting that it is generally desirable that cases proceed to trial and are heard and determined fully on a final basis but noting that there are exceptions to this rule (such as rr 29.7, 29.8 and 29.9). The respondent argues that, where r 29.7 provides for the specific circumstances in which a party is absent from a hearing and sub-r (4) expressly permits dismissal in the absence of a party, the matters of context and the associated desirability and purpose of finality relied upon by the applicant are not persuasive. Noting that a dismissal under r 29.7 is a matter of judicial discretion, the respondent says that the desirability of a full hearing and finality are amongst the various matters to be taken into account in the context of the exercise of that discretion.

In our opinion, there is a ready answer to the applicant’s complaint that r 29.7(4) did not confer power to dismiss the proceedings when he absented himself from the Court. That is to be found by reference to the principle (in administrative and contract law) explained in Licha v Joseph [2025] NSWCA 192 by Griffiths AJA at [61] to the effect that, if a power is exercised under a mistaken belief as to the source of the power, this does not necessarily result in invalidity if the decision is able to be supported by another source of power (see the authorities there cited). His Honour considered that the principle was also implicit in the requirement that an error must be a material error to amount to jurisdictional error in the context of both administrative and judicial decision-making (see the authorities cited at [65]).

In the present case, it was open to the primary judge to dismiss the proceedings under r 12.7 (want of due despatch) in light of the applicant’s refusal to continue to prosecute his case or under r 13.4(1)(c) as an abuse of process. While the respondent accepts that this rule is generally invoked in very different circumstances (where in the conduct of a matter there has been substantial procedural delay), it was in our view open to the primary judge in the circumstances to conclude that the applicant’s refusal to continue with the hearing amounted to a failure at and from that point to prosecute those proceedings with due despatch. But, in any event, there was clearly power under r 13.4(1)(c) to dismiss the proceedings on the basis that from that stage the proceedings had become an abuse of process (since the applicant was refusing to prosecute his claim).

While the applicant protested that he was not “abandoning the Court” (presumably meaning his claim), his conduct (after his various adjournment applications had failed) in absenting himself from Court amounted to presenting his Honour with a fait accompli – i.e., to force an adjournment. In effect, the applicant issued the primary judge with an ultimatum, i.e., adjourn the proceedings or be accused of a denial of procedural fairness or natural justice (saying that if his Honour continued without him being in Court there would be “complete denial”). In other words, having unsuccessfully attempted to obtain an adjournment, and where he candidly accepted that his matter was “going south”, the applicant was now seeking to place the Court in the position where there would be a forced adjournment due to his absence. Unlike the course that Counsel for the applicant now submits would have been available to the primary judge (of treating the applicant’s case as closed and proceeding with the hearing and to determine the case on the merits), the applicant was clearly asserting to the primary judge that such a course would be a denial of procedural fairness or natural justice.

Moreover, while the District Court of New South Wales, as a court of inferior jurisdiction, may only have such powers as are expressly conferred on it or as are necessarily implied from the express conferral of jurisdiction upon and grant of powers to the Court (see Spigelman CJ, Handley JA and Campbell AJA agreeing, in John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324 (John Fairfax) at [24]), it has power to control its own processes. As Spigelman CJ noted in John Fairfax at [27], the District Court has power to stay proceedings which are an abuse of its process (referring to Jago v District Court of New South Wales (1989) 168 CLR 23 at 25-26, 33-34 (Mason CJ), 58 (Deane J), 71 (Toohey J) and 75 (Gaudron J); [1989] HCA 46); and see Grassby v R (1989) 168 CLR 1 at 16-18; [1989] HCA 45 in relation to the powers an inferior court possesses by way of necessary implication. In that context, I note that in Cocker v Tempest (1841) 151 ER 864 at 503-504, Alderson B said:

In Magjarraj, Barrett J referred to the Court’s inherent power to control its own proceedings. An implied power to the same effect would equally apply in the present case. It is not for a litigant unhappy with the outcome of a ruling on an interlocutory application (an adjournment application) to seek to control the course of the proceeding from that point by absenting himself or herself from the court and refusing to continue to prosecute the case.

In those circumstances, whether there was power under r 29.7(4) to dismiss the proceedings is immaterial. There was ample power available to the primary judge under rr 12.7 and 13.4(1)(c) to dismiss the proceedings. The fact that the primary judge could have adopted the alternative course of treating the applicant’s case as closed and then proceeding to determine it on its merits (after any evidence and submissions from the respondent) is not to the point. His Honour was not required to do so.

As to the issue of principle raised by the present application, the contention that r 29.7(4) operates only at one temporal point, namely, the instant when the trial is first called on, we do not accept that this is the proper construction of the sub-rule. True it is that r 29.7(1) is applicable to the rule as a whole and in that sense the words “when a trial is called on” are words of limitation. But we do not accept that a trial may only be “called on” once during the course of a hearing. So, for example, if there is an adjournment (say, had the applicant’s application for an adjournment been granted), the trial would be “called on” again when the hearing resumed. So also if, during the course of the hearing, another matter was interposed and then the hearing was called back on after that matter was dealt with. While in the present case neither of those scenarios occurred, they point to sub-r (4) not being confined to the first instant at which a trial is called on.

The artificiality of a construction that r 29.7(4) only applies when a trial is first called on can be illustrated by the following example. If, in the present case, after the applicant absented himself, the primary judge had stood the matter over to the following day and had then called the matter on again, it would be difficult to see why r 29.7(4) would not in its terms apply if the applicant failed to attend on that occasion. That said, we accept that there is nothing on the transcript to suggest that the primary judge had in fact called the matter back on prior to the application by the respondent for its dismissal pursuant to r 29.7(4).

In any event, as already noted, whether or not in the circumstances confronting the primary judge r 29.7(4) was enlivened, there were available to his Honour other sources of power for the order of dismissal that he made.

Ground 1, had leave been granted, would have been dismissed.

As to the second ground, the applicant accepts that he is required to establish House v The King error in relation to the second ground of appeal but submits that error can be inferred having regard to what he submits is the unreasonable and unjust nature of the refusal to grant the adjournment.

The applicant emphasises the principles applicable in relation to unrepresented litigants (explained by Beazley JA, as Her Excellency then was, with whom Giles JA and Whealy JA agreed, in Hamod v New South Wales [2011] NSWCA 375 (Hamod) at [309]-[316] and which were considered by Gleeson JA, with whom Beazley P and Barrett JA agreed, in Bauskis v Liew [2013] NSWCA 297 (Bauskis) at [67]-[70]). The applicant nevertheless accepts that there may be a “fine tension” in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties, as her Honour observed in Hamod.

The applicant accepts that this Court is reluctant to interfere with discretionary decisions on matters of practice and procedure (referring to Re Will of Gilbert (1946) 46 SR (NSW) 318 at 323 (Jordon CJ); (1946) 63 WN (NSW) 176) and that the power to grant an adjournment must be exercised in accordance with the guiding principles in ss 56-59 of the Civil Procedure Act, which take into account not only the interests of the litigants themselves but also the interests of other litigants and the effect on the court’s resources. However, the applicant submits that the following matters indicate that the primary judge’s discretion miscarried in the present case.

First, the timing of the adjournment application. The applicant points out that he sought an adjournment after his evidence had concluded and almost immediately after his liability expert had commenced giving evidence (cf Bauskis at [77]) and argues that there was more than enough time to accommodate an adjournment, noting the earlier exchanges between counsel and the primary judge about finishing the trial a day earlier than had been listed.

Second, the applicant submits that it was not necessarily the case that there was a voluntary and conscious choice by him to represent himself. Complaint is made that his Honour inferred that the termination of his legal representatives’ instructions was a “sacking” by the applicant (AT 4). The applicant accepts that his legal representatives were “left without instructions” (AT 16) and that he then chose to begin representing himself but says that this was not necessarily a voluntary and conscious choice (in the sense that he had had an opportunity to consider the course to be taken and then prepare to embark upon it; cf Bauskis at [77] and [81]). Counsel for the applicant points out that it is unclear what happened during the adjournment that left the legal representatives without instructions.

Third, it is submitted that there is doubt as to whether the applicant sufficiently understood the choice to represent himself, including matters of practice and procedure, so as to be able fairly to present his own case. The applicant refers to the transcript (in particular, the objections raised by the applicant to the proposition that he could not cross-examine his own witness) and says that he needed an adjournment for this very reason (cf Bauskis at [40], [81], [84]-[85]). The applicant submits that it must have been obvious that, in the context of the events which had transpired, he was unable immediately to conduct his case (cf Bauskis at [61] and [81]).

The applicant invokes the observations of the majority of the High Court (Brennan, Deane, and McHugh JJ) in Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625 (Sali v SPC) at 628-9, quoted by Gleeson JA in Bauskis (at [72]) as to the propositions to be drawn from Maxwell v Keun [1928] 1 KB 645 at 650, 657 and 658, namely that, although an appellate court will be slow to interfere with the discretion of a primary judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party and that an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action. (Their Honours there, however, also noted that both propositions were formulated “when court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become”.) The applicant submits that the second of those propositions tells powerfully that an adjournment, “even a short one”, ought to have been granted.

The applicant thus submits that he has established inferred error in the House v The King sense on the basis that the refusal of the adjournment was unreasonable or clearly unjust.

The respondent submits that at the heart of the primary judge’s refusal of the adjournment application was the fact that the applicant had put himself in the position of being self-represented by reason of his terminating the instructions of his barrister and solicitor. (As noted above, the applicant cavils with the suggestion that it can necessarily be concluded that he had “sacked” his lawyers or that he made a voluntary and conscious decision to represent himself.)

The respondent argues that the primary judge was entitled to rely heavily on the fact that he had been informed by the applicant’s Counsel that his instructions had been terminated and notes that the applicant did not object to what Mr Khoury told his Honour in this regard. The respondent argues that the primary judge, having observed the applicant in evidence and otherwise, was in the best position to assess the context in which the application for an adjournment was being made. To the extent that the applicant’s case “collapsed”, the respondent says that this was not caused by the refusal of the application for an adjournment; rather, it was caused by the applicant’s decision to absent himself from the hearing.

The respondent submits that there was no denial of justice or serious injustice to the applicant, in the manner contemplated in Sali v SPC, in the refusal of the adjournment; and that, in the circumstances, the decision was neither plainly wrong nor unreasonable.

There is no dispute as to the applicable principles in relation to an adjournment application. The power to adjourn is exercised having regard, among other things, to ss 57 to 59 of the Civil Procedure Act.

As to the matters raised by the applicant as indicating that the discretion miscarried, we note as follows.

First, as to the timing of the application, it should be noted that there was no indication given by the applicant as to the length of adjournment he sought; and one might rightly be dubious as to the proposition that it would have been short. If the adjournment was sought for the applicant to obtain legal representation or advice, then it may be recalled that the applicant had by that stage already had the benefit of pro bono legal representation; so that another referral under the scheme was unlikely. If the adjournment was sought to make a complaint to the Judicial Commission, that would necessarily have taken time. If, as his Honour considered might also have been in the applicant’s contemplation, the applicant was seeking an adjournment to approach this Court, it seems unlikely that the applicant would have been in a position to marshal the resources to do so within the remaining two and half days then available for the District Court hearing. Moreover, the applicant seems to have been accusing the primary judge of bias, which is not consistent with an expectation that the matter would have resumed before the primary judge within the envelope of the hearing dates allocated. The primary judge could hardly be criticised for thinking that acceding to the adjournment application would imperil the conclusion of the hearing within the time allocated to it.

Second, there was no material error in the primary judge concluding that the applicant had “sacked” his lawyers or that it was the applicant who had terminated their instructions. One would expect that Mr Khoury chose his words (that his brief had been terminated) with some care. While the passive voice was used, it is telling that Mr Khoury did not commence by seeking leave to withdraw (say on the basis that he was unable to continue to act in the matter or that the solicitors were unable to do so). As a pro bono referral, there could hardly have been an issue as to fees which could have led to the legal representatives seeking to withdraw at that stage of the hearing.

Moreover, the applicant’s own statements to his Honour should be recalled. While the applicant denied that he had “just sacked” his lawyers, the applicant told the primary judge that Mr Khoury was given instructions; did not adhere to instructions; and “failed those instructions”. While the applicant said that Mr Khoury had “terminated himself”, the essence of what the applicant said, sensibly understood, can only have been to indicate that there was a dispute between him and Mr Khoury (and perhaps his solicitors) as to whatever instructions Mr Khoury had been given. There are, realistically, only two explanations – either the applicant considered that Mr Khoury had not followed his instructions and terminated the retainer (being dissatisfied with his legal representation) or Mr Khoury had indicated an inability ethically to follow those instructions leading to the same result. Either way, the termination of the brief must have been of the applicant’s own making. The primary judge was entitled to assume that Mr Khoury was acting ethically and in accordance with the Bar rules when informing him that his brief had been terminated.

Accepting that there is a measure of speculation as to the precise circumstances in which the brief had been terminated, the position confronting his Honour was nevertheless that, midway through day two of a four-day trial, the brief for the applicant’s legal representatives had been terminated and, far from this being a matter of complaint by the applicant, the applicant had welcomed that outcome (saying that justice would be done).

Third, as to there being doubt as to the ability of the applicant to represent himself, it would certainly have been obvious to the primary judge that the conduct of the hearing would be more difficult if the applicant was not represented. One need only consider the manner in which it appears the applicant reacted to rulings which he perceived as against his interests or his wishes. However, on any view, the situation in which the instructions of the legal representatives had been terminated followed a dispute as to the instructions they were being given by the applicant (whether it be his dissatisfaction with a “failure” to follow or adhere to those instructions or the barrister’s liability professionally to adhere to them). That left the primary judge with little choice, if the hearing was to proceed within the time allocated.

Given that the primary judge may be expected to have acted in accordance with his responsibility, if the hearing continued with an unrepresented litigant, to ameliorate the procedural disadvantages under which the applicant as a non-lawyer would have laboured, it cannot be said that the fact that the applicant was by then without legal representation should have been determinative of the adjournment application.

The decision to refuse an adjournment, in circumstances where it would seem almost inevitable that this would lead to an inability to conclude the hearing within the time allocated, considered in light of the mandate for the just, quick and cheap resolution of the real issues in dispute and the demands on the court time of other litigants, was in our view correct. In any event, the decision by the primary judge not to grant an adjournment was by no means unreasonable or plainly unjust.

No House v The King error has been shown. Had leave been granted in relation to Ground 2, it would have been dismissed.

The applicant submits that in the event that his application is refused there should be no order as to costs. The respondent seeks its costs of the summons seeking leave to appeal. We see no reason for costs not to follow the event.

The Court expresses its gratitude to Mr Puttick of counsel, who appeared pro bono for the applicant after a referral made by Kirk JA on 16 April 2025.

For the above reasons, the summons seeking leave to appeal will be dismissed with costs. Had leave been granted for the appeal, the appeal would have been dismissed with costs for the reasons given in relation to grounds 1 and 2. Accordingly, the Court orders: