Home » Practice and Procedure » Adjournments in Victorian Courts: Key Principles and Practical Guidance

Adjournments in Victorian Courts: Key Principles and Practical Guidance

Updated April 16, 2012

Adjournments in Victorian Courts – Quick Answers

What is an adjournment in a Victorian Court?

An adjournment is a discretionary decision by a Magistrate or Judge to delay a hearing to another date. Under s 331 of the Criminal Procedure Act 2009 (Vic), a Court may adjourn a criminal proceeding for any purpose, on any terms, and may remand, bail, or release the accused.

When will a Court grant an adjournment?

A Victorian Court is more likely to grant an adjournment when:

early notice of the application is given
there is a genuine, supported reason (for example, proper medical evidence)
refusing the adjournment would cause injustice to the accused
the prosecution does not oppose the application
the adjournment does not cause irreparable prejudice to the other side

What happens if an adjournment is refused?

If an adjournment is refused, the case may proceed immediately. In limited situations, urgent review can be sought in the Supreme Court Practice Court, particularly where refusal risks denying a fair trial, such as in SM v The Queen [2011] VSCA 332.

Victorian Courts are under significant pressure to reduce delays, sharpening the tension between an accused person’s right to properly prepare their defence and the judiciary’s need to progress matters efficiently. If you are seeking an adjournment, you must demonstrate a genuine and defensible reason for the application. Courts want matters to proceed—so the strength and preparation behind your application are critical.

1. Notify All Parties Early

As soon as you become aware that an adjournment will be required, notify the prosecution and any other interested parties. Early notice allows the Court to re-list another matter in your allocated slot, and this will be considered when the judicial officer exercises their discretion.

2. Support the Application With Proper Evidence

If the adjournment is sought because your client is unwell, ensure you have meaningful medical evidence—not merely a generic medical certificate. Courts expect a letter from a treating doctor explaining the specific illness, why it prevents attendance, and the anticipated duration of incapacity.

3. Adjournments Are Entirely Discretionary

The power to adjourn is discretionary, and the accused’s interests are not the only considerations. As stated in R v Cox [1960] VR 665:

“The judge in exercising his discretion is not confined to regarding the interests of the accused. He is entitled to regard the interests of justice which may well be a different matter.”

4. Have a Backup Plan

Never assume an adjournment will be granted. Prepare as though the matter may proceed. If the application fails, you may be required to run the case immediately.

5. Discuss the Application With the Prosecution

Before appearing, speak with the prosecution. If they do not oppose the adjournment, the Court will generally view the request more favourably. Avoid telling the Court it is “consented to”—prosecutors can only “not oppose”.

6. If Your Client Is Not Attending, Ensure You Can Reach Them Immediately

If the application will be made in your client’s absence, they must be contactable until the outcome is known. Warn them the Court may issue a warrant if the adjournment is refused.

7. Judicial Review in the Supreme Court (Practice Court)

Urgent judicial review can be sought in the Supreme Court on the same day where refusal to adjourn creates injustice. This process carries risks, including potential costs orders, and requires demonstrating an error of law.

8. Legislative Framework: s 331 Criminal Procedure Act 2009 (Vic)

Section 331 grants the Court broad powers to adjourn proceedings to any time, for any purpose, and on any terms considered appropriate.

9. Case Law: When a Refusal to Adjourn Becomes Appealable Error

Key principles from SM v The Queen [2011] VSCA 332 emphasise that while appellate intervention is rare, refusal can amount to error where justice would otherwise be denied.

10. Practical Takeaways

Give early notice.
Provide meaningful supporting materials.
Engage with the prosecution.
Always be prepared to proceed.
Escalate via judicial review only in exceptional cases.

Frequently Asked Questions About Adjournments in Victoria

What is the legal test for an adjournment in Victoria?

A Court should not refuse an adjournment if doing so would cause injustice to the accused, unless granting it would cause irreparable prejudice to the other side. These principles come from Brimbank Automotive v Murphy and SM v The Queen (2011).

What evidence do you need to support an adjournment?

Courts expect specific medical or factual evidence. A detailed doctor’s letter explaining the illness, why it prevents attendance, and expected recovery time carries more weight than a generic certificate.

Can a Magistrate refuse an adjournment even if the prosecution does not oppose it?

Yes. A prosecutor can only ‘not oppose’. The decision is always at the discretion of the Magistrate or Judge.

What should you do if applying for an adjournment in your client’s absence?

Ensure the client is contactable until the outcome is known. Warn them that refusal may result in a warrant.

Can a refusal to adjourn be appealed?

Only if the decision was not reasonably open or was wrong in law. SM v The Queen overturned such a refusal.

What law governs adjournments in Victoria?

Section 331 of the Criminal Procedure Act 2009 (Vic) allows a Court to adjourn a proceeding to any time, for any purpose, and on any terms it considers appropriate.

Date Updated: 10 December 2025

LEGAL DISCLAIMER

“This content is for informational purposes only and should not be considered legal advice. Please consult a qualified criminal defence lawyer before making any decisions regarding your matter”