Edwards v State of New South Wales

[2022] NSWCA 144

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Edwards v State of New South Wales [2022] NSWCA 144

Hearing dates:

08 August 2022

Decision date:

08 August 2022

Before:

Leeming JA

Decision:

Notice of motion filed 29 July 2022 dismissed with costs.

Catchwords:

PRACTICE – appeals – application to vacate – absence of evidence to explain why appeal could not proceed – heavy burden accompanying such applications – application refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 59

Uniform Civil Procedure Rules, r 42.1

Cases Cited:

Bovaird v Frost [2013] NSWCA 91

Menzies v Paccar Financial Pty Ltd (No 2) [2014] NSWCA 2

Penson v Titan National Pty Ltd [2015] NSWCA 382

Category:

Procedural rulings

Parties:

Matthew Edwards (Appellant/Applicant)
State of New South Wales (Respondent)

Representation:

Counsel:
Applicant in person
A Williams, T Buterin (Respondent)

Solicitors:
Crown Solicitor’s Office (Respondent)

File Number(s):

2021/00094958

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2021] NSWSC 181

Date of Decision:

4 March 2021

Before:

Walton J

File Number(s):

2014/00349652

EX TEMPORE Judgment

1. LEEMING JA: By notice of motion filed 29 July 2022, the appellant, Mr Matthew Edwards, applies to vacate the hearing of his appeal which was set down as long ago as 14 March 2022, to be heard tomorrow 9 August 2022.

2. The appeal – as opposed to the application to adduce fresh evidence – is ready to be heard. The respondent State of New South Wales has prepared the appeal books, and these were supplied in May and June.

3. Attention today has therefore focussed on a motion served by Mr Edwards to adduce fresh evidence. The evidence is voluminous and is attached to his affidavit of 16 May 2022. Unlike the submissions on the appeal, the timetable for submissions on fresh evidence has not been complied with. Mr Edwards has not to date, as I understand it, supplied written submissions for his application for fresh evidence although the State has filed its submissions opposing the admission of fresh evidence (I am told they are at pages 54-56 of the Orange book).

4. Mr Edwards relies on his affidavit of 29 July 2022, almost all of which is directed to his arrest and subsequent proceedings in courts at Maitland between 21 May and 23 June of this year. He says and I accept that he was “totally occupied with the stress of the potential of the false, frivolous, and vexatious actions above”, referring to the period from 21 May 2022 to 23 June 2022. There was no objection to that evidence and no application to cross-examine Mr Edwards. Mr Edwards has elaborated orally on the effects this has had upon him. I accept this.

5. However, the difficulty faced by Mr Edwards is that it is now August and now some 6 or 7 weeks have elapsed since 23 June 2022. The only evidence which Mr Edwards points to concerning his inability to attend to the preparation of the appeal for the period between 24 June to date is that he was “occupied with floods and storms to the point of 100% flooded and isolated for approximately two weeks”.

6. As the State observes, accepting that at face value that leaves four weeks, culminating today, as to which there is nothing by way of evidence to indicate why Mr Edwards was unable to prosecute his appeal.

7. The applicable principles are not in dispute. This court does not readily accede to applications to vacate hearing dates unless the proceedings have been settled or abandoned: see Bovaird v Frost [2013] NSWCA 91 at [1] and Menzies v Paccar Financial Pty Ltd (No 2) [2014] NSWCA 2 at [9]. There is a “heavy burden” of vacating the hearing date shortly before the hearing: Penson v Titan National Pty Ltd [2015] NSWCA 382 at [8].

8. The reason for that is that this Court is bound in accordance with ss 56 and 59 of the Civil Procedure Act 2005 (NSW) to implement its procedure having regard to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in dispute and to implement its practice and procedure with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination.

9. The present appeal has been relatively slow moving. There is a slightly complicated interlocutory hearing because there is both an application for leave to appeal and an appeal. Those proceedings were commenced in July and October 2021 respectively, and thus have been proceeding in the Court for slightly more than a year.

10. I bear in mind not merely the explanation by Mr Edwards and its limitations, and ss 56 and 59 of the Civil Procedure Act but also the fact that the parties have already exchanged written submissions on the appeal. The purpose of the oral submissions is to supplement and elaborate and focus attention on the matters that have already been set out in writing. There is no reason to think that that cannot occur tomorrow.

11. So far as the application to adduce fresh evidence goes, accepting that Mr Edwards has not complied with directions, it is clear that Mr Edwards has given thought to which of the documents are the greatest significance in his appeal. He will have an opportunity to identify them in the appeal.

12. In circumstances where there is no evidence as to Mr Edwards being unable to prepare for his appeal over the last 6 weeks, save for a fortnight when he says, and I accept, he was occupied with floods and storms, I am of the view that he has not discharged the heavy burden which an application of this nature bears. Accordingly, I dismiss the notice of motion filed 29 July 2022.

13. The effect of that is that the appeal will proceed tomorrow. The usual course is for that hearing to be in person, as is usual for all contested applications. If either side wishes to make an application for an exemption, then such an application may be made.

14. [Submissions concerning costs]

15. Counsel for the State has been instructed to seek an order for costs. The State has been put to costs by reason of the notice of motion and r 42.1 of the Uniform Civil Procedure Rules makes a default provision for a cost order. Mr Edwards accepts as much candidly. I order that the notice of motion filed on 29 July 2022 be dismissed with costs.

**********

Decision last updated: 08 August 2022