JULY 27 — It is settled law that it is in the absolute discretion of the court to decide whether to allow or not an application for the postponement or adjournment of a case which has been set down for hearing.
Some of the reported cases on the law were comprehensively referred to and elaborated by Justice VT Singham almost 20 years ago in 2003 in the case of Soonfroze Corp Sdn Bhd v Siti Salabiah Bte Chek Hassan & Ors.
The first is the case Hup San Timber Trading Co Sdn Bhd v Tan Ah Lan (1979) where Federal Court Judge Wan Suleiman, sitting in the High Court, referred to the English Court of Appeal case of Dick v Piller (1943) that a judge would have caused a serious miscarriage of justice if he had refused an adjournment and thereby neglected a first principle of law, that is, the defendant was entitled to his elementary right to be heard before he was condemned.
If justice requires an adjournment, the legal duty of the judge — when an adjournment is applied for — is to give an adjournment unless he is satisfied that an injustice would thereby be done to the other side which cannot be reduced by costs.
The second is the case of Mohanlal Gordhandas Sheth v Ban Guan & Co (1956) where the High Court had refused an adjournment as the party could not return from India in time for the hearing of the case owing to passport difficulties. On appeal to the Court of Appeal, Chief Justice Matthew (with whom Singapore Chief Justice Whyatt and Justice Buhagiar agreed) said:
“I think that an injustice may occur if the appellant is deprived of his right to defend the suit.”
The Chief Justice had also referred to the observation of Lord Justice Atkin in the English case of Maxwell v Keun (1928) where the latter said: “[In] the exercise of a proper judicial discretion no judge ought to make such an order as would defeat the rights of a party and destroy them altogether, unless he is satisfied that he has been guilty of such conduct that justice can only be properly done to the other party by corning to that conclusion.”
The third is the case of Mohamed Ekram v Public Prosecutor (1962) where Justice Ismail Khan observed that in applications for adjournment, each case should be considered on its merits.
The fourth is a more recent case of Lee Ah Tee v Ong Tiow Pheng & Ors (1984). In this case, Federal Court Judge Hashim Yeop A Sani (as he then was) observed:
“The discretion of the judge to allow or refuse an application for adjournment was a subject dealt with in depth by the Court of Appeal in Dick v Piller. We agree to and adopt the following principles as regards the discretion in allowing or refusing an adjournment:
(1) Whether or not a party should be granted an adjournment is wholly at the discretion of the judge. He would exercise the discretion solely upon his view of the facts.
(2) Prima facie this discretion is unfettered.
(3) The question to ask in any particular case is whether on the facts there are adequate or sufficient reasons to refuse the adjournment.
(4) Although an appellate court has power to interfere with the judge’s decision in regard to the granting of an adjournment, it would refrain from doing so unless it appears that such discretion has been exercised in a way which tended to show that all necessary matters were not taken into consideration or the decision was otherwise arbitrarily made.
(5) An appellate court ought to be very slow to interfere with the exercise of the discretion. But if it appears that the result of the order made below would be to defeat the rights of the parties altogether or that there would be an injustice to one or the other of the parties then the appellate court has power and indeed a duty to review the exercise of the discretion.”
It cannot be overemphasised that every case which is fixed for hearing should proceed with all convenient speed without having to adjourn the case on flimsy grounds. If there is an application for adjournment, the court must look at the material and the grounds for the adjournment in order to exercise its discretion correctly.
What is ‘convenient speed’ would depend on the circumstances of each particular case. [See Public Prosecutor v Mah Chuen Lim & Ors (1975)] But the court cannot arbitrarily adjourn the hearing of a matter indefinitely because to do so may lead to defeating justice.
In the exercise of a discretion to refuse or grant an adjournment, the court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. This was said in the Australian case of Sali v SPC Ltd (1993) in the following words:
“What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.
“In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.”
Indeed. Adjournments delay final adjudication of cases. Costs are incurred. Delay and costs are undesirable, and delays have deleterious effects.
Counsels must therefore note that they not only have a duty to their clients, but also a duty to the court. The latter is paramount.
Now, it is interesting the Chief Justice of Malaysia in a letter in 2009 once wrote:
“It matters not who requested for the adjournment, be it from the lawyers, Federal Counsels, Deputy Public Prosecutors or from the Court, the public will still conclude that it is the Court who is delaying the proceedings.
“In fact, it is unfair to have the blame imposed solely on the Courts.
“In order to transform this inaccurate perception, I urge all Judges and Judicial Officers to be strict in granting last minute postponements without reasonable notice.”
So, to grant adjournment or not to grant?
As Court of Appeal Judge Gopal Sri Ram (as he then was) once said, granting postponement is a judicial discretion. Exercise it wisely.
* This is the personal opinion of the writer or organisation and does not necessarily represent the views of Malay Mail.
