An automatic right to an adjournment for new lawyers?

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22 May 2009

The courts will often grant adjournments where a litigant has engaged new lawyers. Nonetheless, the NSW Supreme Court in the case of Kingsway Group Ltd v Belramoul [2009] NSWSC 345 recently refused an application to adjourn a hearing made by a litigant who had briefed their barrister only the day before.

FACTS

A lender issued proceedings seeking orders to enforce a loan agreement against a married couple. Filing of all evidence was completed in late 2008, and trial was set down for early March 2009.

One week before the trial was due to commence, the husband applied for an adjournment on the grounds that his solicitors had recently stopped acting and that he needed time to engage new representation. Ruling on the matter, Schmidt AJ stated that “[t]he question of what justice requires as between the parties in this situation is rather finely balanced … Having considered the competing arguments, I have concluded that balance tilts slightly in favour of the adjournment being granted, but for a short period”. The court therefore set a new hearing date of 29 April 2009.

When the time came for the matter to be heard on 29 April 2009, the couple applied for a further adjournment on two grounds. First, that the couple’s barrister had just been briefed the day before and therefore had not been given adequate time to prepare and secondly, that it was the barrister’s opinion that certain further evidence needed to be obtained. Evidence was given by the couple outlining their difficulties and the steps they had taken in arranging legal representation. The lender opposed the granting of a further adjournment.

Decision

Schmidt AJ found that the evidence from the couple in support of their request for a further adjournment was “scanty” and “in the most general of terms”, and that there was “an entirely inadequate explanation of what the [couple] had done since March, in order to arrange legal representation for the hearing”.

Although undoubtedly having the discretion to do so, Schmidt AJ refused to grant a further adjournment. Her Honour was satisfied that “it would not have done justice between these parties” to have acceded to the couple’s request. She noted that, having obtained the first adjournment in April as a result of problems with legal representation in circumstances which were then finely balanced, “it would have been patently unjust if a further adjournment then flowed from the fact that legal representation had [then] been arranged”.

Her Honour was also not convinced that a further adjournment was justified by the view of the couple’s new barrister that further evidence should be obtained, given that the couple’s previous lawyers had finalised the evidence in the previous year.

It should be noted that in coming to her decision, Schmidt AJ took into account the NSWCivil Procedure Act 2005 in which section 56, for instance, states that, when exercising any power under that Act, the court must seek to give effect to the overriding purpose of facilitating the “just, quick and cheap resolution of the real issues in the proceedings”.

Significance

Schmidt AJ’s decision confirms that there is no automatic right to an adjournment when a litigant experiences difficulties in obtaining legal representation. In our view, this is a welcome decision that suggests that, in the absence of cogent supporting material, the courts may not readily grant an adjournment because of the engagement of new lawyers. 

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