HP Mercantile Pty Limited v Dyce - [2015] NSWDC 426

District Court

New South Wales

Medium Neutral Citation: HP Mercantile Pty Limited v Dyce [2015] NSWDC 426
Hearing dates: 20 August 2015
Date of orders: 20 August 2015
Decision date: 20 August 2015
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1)   Defendant’s notice of motion granted.
(2)   Vacate hearing date of 21 August 2015.
(3)   Stand the matter over for further directions to Thursday, 19 November 2015 at 10am before P Taylor SC DCJ.
(4)   Costs of the notice of motion, including any costs thrown away by reason of the vacation of the hearing date, be costs in the proceedings.
(5)   Liberty to the parties to apply on 3 days’ notice for any variation of the listing on 19 November 2015.

Catchwords: CIVIL PROCEDURE — hearings — vacation of hearing date – medical reasons – similar Supreme Court proceedings – self-represented litigant
Legislation Cited: Civil Procedure Act 2005, s 56, s 58, s 66, s 140
Supreme Court Rules 1970, Pt 14 r 2
Uniform Civil Procedure Rules 2005
Cases Cited: Abbott v Klein [2015] NSWDC 45
Everett v Neale [2012] NSWDC 73
HP Mercantile Pty Ltd v Clements [2014] NSWSC 509
HP Mercantile Pty Ltd v Kym and Paul Clements [2015] NSWCA 212
Petrovic v Taara Formwork (Canberra) Pty Ltd (1982) 62 FLR 451
Sydney City Council v Ke‑Su Investments Pty Ltd (1985) 1 NSWLR 246
Vasiljev v Public Trustee [1974] 2 NSWLR 497
Walker v Walker [1967] 1 WLR 327
Category: Procedural and other rulings
Parties: HP Mercantile Pty Limited ACN 097 362 877 (plaintiff)
Timothy Shaun Dyce (defendant)
Representation:
Counsel:
Mr G Versace (plaintiff)
Solicitors:
K & L Gates (plaintiff)

File Number(s): 2012/201245
Publication restriction: None

Judgment

The defendant, Timothy Dyce, seeks:

that the hearing date tomorrow, 21 August 2015, be vacated; and

that the proceedings be listed for further directions on a date later than 16 October 2015.

The plaintiff, HP Mercantile Pty Limited (“HP Mercantile”), opposes the motion. Mr Dyce relies on two grounds.

MR DYCE’S HEALTH

Firstly, health. Mr Dyce is in the United Kingdom, is self‑represented and appears via audio link. He had an accident on 31 July 2015 and suffered a dislocated thumb and a right‑sided pneumothorax. Pneumothorax is a serious matter commonly involving the presence of air or other gas in the cavity between the lungs and the chest wall causing the collapse of the lung. Mr Dyce said that in his case he was found to have air in a region near the kidney thought to result from a puncture in the lung. It was not thought to be a major break requiring surgery and was expected in time to heal itself.
As of 12 August 2015, Mr Dyce was advised that he "should not undertake a flight which had been planned for next week" and "is not fit to fly until further assessment by a specialist doctor". Mr Dyce submits that, "Doctors will not give me leave to travel internationally for a further…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWDC 426
Decision Date: 20 August 2015

CaseChat Overview and Summary

HP Mercantile Pty Limited filed a claim against Dyce, with the dispute being heard in the Federal Circuit Court of Australia. The defendant, Dyce, sought to vacate the hearing date on the grounds of medical issues, which were substantiated by a medical certificate. Dyce was also involved in similar proceedings in the Supreme Court and chose to represent himself in the Federal Circuit Court. The primary legal issue was whether the court should grant Dyce's application to vacate the hearing date due to his medical condition, considering the potential prejudice to the plaintiff and the need for efficient judicial management.

The court, led by Justice Gilmour, considered the circumstances surrounding Dyce's application. It was noted that Dyce had not provided any explanation for the delay in lodging his application, nor had he shown that the adjournment would not cause substantial prejudice to HP Mercantile. Additionally, the court acknowledged the similarity of the issues in both proceedings, which could lead to a waste of judicial resources. Despite the medical certificate, the court emphasised the importance of efficient judicial management and the need for parties to plan their legal matters appropriately. The court granted Dyce's application but made specific orders to mitigate any potential prejudice to HP Mercantile.

The orders included vacating the hearing date of 21 August 2015 and rescheduling the matter for further directions on 19 November 2015. The court also directed that the costs of the notice of motion, including any costs incurred due to the vacation of the hearing date, be considered costs in the proceedings. Finally, the court allowed the parties to apply for any variation of the new listing date with three days' notice. This decision balanced the need to accommodate Dyce's medical circumstances with the importance of judicial efficiency and fairness to the plaintiff.

Orders

Orders of the court

(1) Defendant’s notice of motion granted.

(2) Vacate hearing date of 21 August 2015.

(3) Stand the matter over for further directions to Thursday, 19 November 2015 at 10am before P Taylor SC DCJ.

(4) Costs of the notice of motion, including any costs thrown away by reason of the vacation of the hearing date, be costs in the proceedings.

(5) Liberty to the parties to apply on 3 days’ notice for any variation of the listing on 19 November 2015.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	HP Mercantile Pty Limited v Dyce [2015] NSWDC 426
Hearing dates:	20 August 2015
Date of orders:	20 August 2015
Decision date:	20 August 2015
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Defendant’s notice of motion granted. (2) Vacate hearing date of 21 August 2015. (3) Stand the matter over for further directions to Thursday, 19 November 2015 at 10am before P Taylor SC DCJ. (4) Costs of the notice of motion, including any costs thrown away by reason of the vacation of the hearing date, be costs in the proceedings. (5) Liberty to the parties to apply on 3 days’ notice for any variation of the listing on 19 November 2015.
Catchwords:	CIVIL PROCEDURE — hearings — vacation of hearing date – medical reasons – similar Supreme Court proceedings – self-represented litigant
Legislation Cited:	Civil Procedure Act 2005, s 56, s 58, s 66, s 140 Supreme Court Rules 1970, Pt 14 r 2 Uniform Civil Procedure Rules 2005
Cases Cited:	Abbott v Klein [2015] NSWDC 45 Everett v Neale [2012] NSWDC 73 HP Mercantile Pty Ltd v Clements [2014] NSWSC 509 HP Mercantile Pty Ltd v Kym and Paul Clements [2015] NSWCA 212 Petrovic v Taara Formwork (Canberra) Pty Ltd (1982) 62 FLR 451 Sydney City Council v Ke‑Su Investments Pty Ltd (1985) 1 NSWLR 246 Vasiljev v Public Trustee [1974] 2 NSWLR 497 Walker v Walker [1967] 1 WLR 327
Category:	Procedural and other rulings
Parties:	HP Mercantile Pty Limited ACN 097 362 877 (plaintiff) Timothy Shaun Dyce (defendant)
Representation:	Counsel: Mr G Versace (plaintiff) Solicitors: K & L Gates (plaintiff)
File Number(s):	2012/201245
Publication restriction:	None