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 adjournment of a case set down for hearing.

Some of the reported cases on the law were comprehensively referred to and elaborated by Justice V.T. 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 that cannot be reduced by costs.

The second is the case of Mohanlal Gordhandas Sheth v Ban Guan & Co (1956), where the High Court refused an adjournment because 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 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 a party should be granted an adjournment is wholly at the discretion of the judge, who would exercise the discretion solely upon his or her view of the facts.

(2) Prima facie this discretion is unfettered.

(3) The question to ask in any particular case is whether, based 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 the granting of an adjournment, it would refrain from doing so unless it appears that such discretion has apparently not taken all necessary matters 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 fixed for hearing should proceed with all convenient speed without having to adjourn the case on flimsy grounds.

If there is an application, 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)).

However, the court cannot arbitrarily adjourn the hearing of a matter indefinitely because to do so may lead to defeating justice.

In the exercise of discretion, 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 that 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 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 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. – July 28, 2022.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.