Hurst-Meyers v Hoy
[2022] ACTCA 36
•14 July 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Hurst-Meyers v Hoy |
Citation: | [2022] ACTCA 36 |
Hearing Date: | 6 July 2022 |
DecisionDate: | 14 July 2022 |
Before: | Kennett J |
Decision: | Application in Proceeding filed on 22 June 2022 is dismissed. Costs of the Application are reserved. |
Catchwords: | APPEAL – APPLICATION IN PROCEEDING – Application to adduce further evidence on appeal – whether proposed further evidence was reasonably available to be led at the time of the hearing – whether proposed further evidence would have made a difference in terms of the primary decision |
Legislation Cited: | Evidence Act 2011 (ACT) ss 38, 131 Federal Court of Australia Act 1976 (Cth) s 27 Supreme Court Act 1933 (ACT) ss 37J, 37N |
Cases Cited: | August v Commissioner of Taxation [2013] FCAFC 85 Coulton v Holcombe (1986) 162 CLR 1 TS v DT [2020] ACTCA 43 |
Parties: | Ralph George Noel Nancy Hurst-Meyers (First Appellant) RHM Industries Pty Ltd (Second Appellant) Gavin Robert Hoy (Respondent) |
Representation: | Counsel Self-represented (Appellants) Elringtons Lawyers (Respondent) |
| Solicitors Self-represented (Appellants) M Evelyn (Respondent) | |
File Number: | ACTCA 20 of 2022 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 30 March 2022 Case Title: Hoy v Hurst-Meyers (No 2) Citation: [2022] ACTSC 58 |
KENNETT J:
Introduction
The first appellant (Mr Hurst-Meyers) is the sole shareholder and director of the second appellant. For the sake of brevity I refer to Mr Hurst-Meyers as if he were the sole appellant and the sole defendant in the proceedings below. By an Application in Proceeding filed on 22 June 2022, he has sought leave to adduce further evidence in his appeal. I am dealing with this application as a single judge exercising the jurisdiction of the Court of Appeal pursuant to s 37J of the Supreme Court Act 1933 (ACT).
The proceeding below
The respondent to the appeal (Mr Hoy) claimed an amount of $200,000 from Mr Hurst-Meyers. He filed his Originating Claim on 31 July 2019.
Mr Hoy relied on a written agreement, signed by him and Mr Hurst-Meyers and dated 18 August 2016, described as a partnership agreement and apparently intended to facilitate property development activities that they proposed to undertake together (the partnership agreement). The partnership agreement provided for Mr Hoy to make a contribution of $200,000, and he made three funds transfers adding up to that amount to Mr Hurst-Meyers in the days following the execution of the agreement. The partnership agreement also contained what the parties referred to as a “parachute clause”, which permitted Mr Hoy to leave the partnership at a time of his choosing and to receive a full refund of his contribution. On or about 15 September 2017, Mr Hoy invoked that clause and sought the return of the $200,000 he had contributed. There was evidence that Mr Hurst-Meyers had at least initially accepted an obligation to pay him this amount. However, the amount was not paid, and in July 2019 Mr Hoy commenced proceedings.
Central to Mr Hurst-Meyers’s case was a form of contract for the sale of land signed by Mr Hoy and dated 19 July 2016 (the sale contract). (He raised the sale contract in an amended Defence and Counterclaim filed on 21 April 2020 that was subsequently struck out, and it remained prominent in the final version of his pleading.) The land to which that contract related was a block within a subdivision of land in Old Reynella, South Australia (the land), which Mr Hurst-Meyers was seeking to subdivide and develop. He and Mr Hoy had discussed the possibility of the latter investing in the project.
Two versions of the sale contract were in evidence before Elkaim J. The version tendered by Mr Hurst-Meyers specified an amount of $200,000 in the space provided for the amount of the deposit. On this basis, Mr Hurst-Meyers apparently contended that the $200,000 paid to him by Mr Hoy was in fact a deposit paid pursuant to this contract, and not a contribution to the partnership in respect of which Mr Hoy could rely on the parachute clause. However, the version tendered by Mr Hoy (which was a copy of the document as signed by him and transmitted to Mr Hurst-Meyers), did not include any amount by way of deposit. An evidentiary contest thus arose as to whether there was a contract that provided for payment of $200,000 by way of deposit. In that connection, Mr Hurst-Meyers called oral evidence from Mr Craig Poole in an attempt to prove that Mr Hoy had given instructions for the amount of $200,000 to be inserted. However, the evidence that Mr Poole was able to give was very limited and did not establish that Mr Hoy had given any instruction to insert the sum of $200,000 (or indeed any sum) in the contract.
The primary judge articulated several reasons for not accepting that Mr Hoy had made any promise to pay the sum of $200,000 by way of deposit under the sale contract, and therefore holding that the amounts he had paid to Mr Hurst-Meyers were paid pursuant to the partnership agreement and subject to the parachute clause. These were, in summary, as follows.
(a)The discrepancy between the two versions of the contract, and the lack of any satisfactory evidence that Mr Hoy had agreed to the inclusion of the sum of $200,000 in it, made it hard to accept that there was any binding contract involving payment of that amount.
(b)The terms of the email under cover of which Mr Hoy had returned the signed sale contract to Mr Hurst-Meyers (which, as well as referring to the parachute clause, expressed an understanding that the contract “will not be ‘acted upon’”) suggested that there was no intention to create legal relations.
(c)Even if the contract was binding, it included a provision stating that it was “subject to” a plan of division for the land being accepted for deposit by the registrar-general of the land titles office on or before a specified date. That did not occur.
(d)Mr Hurst-Meyers had at least initially accepted an obligation to repay the sum of $200,000 when Mr Hoy sought repayment.
(e)There had been no attempt to rely upon or enforce the contract of sale.
Further evidence in an appeal
In TS v DT [2020] ACTCA 43 Collier J (with whom the other members of the Court agreed) said at [57]–[58]:
57.Principles referable to admission of further evidence on appeal were set out by the Court of Appeal in Jovanovic v R [2015] ACTCA 29, where their Honours observed:
21.Section 37N(3) of the [Supreme Court Act 1933 (ACT)] provides that the Court of Appeal “may receive further evidence” by oral examination, affidavit or other means. There is no statutory restriction on the receipt of further evidence, but the nature of appeals to the Court of Appeal provides some guidance as to the manner in which the Court’s discretion should be exercised.
22.Ordinarily, further evidence will not be admitted on an appeal if it was available, or could reasonably have been obtained at the time of the hearing: Hillier v The Queen [2008] ACTCA 3; (2008) 1 ACTLR 235 at [160]. Different considerations may apply where there is a question about whether an irregularity in the proceedings has prevented a party from putting his or her case effectively: Hillier at [161]. A decision to withhold evidence at trial will weigh heavily against its reception on appeal: Hillier at [164].
23.As noted in Hillier at [160], s 27(1) of the Federal Court of Australia Act 1976 (Cth) similarly provides that when hearing an appeal, the Court may “in its discretion receive further evidence”. In August v Commissioner of Taxation [2013] FCAFC 85 at [116] the Court observed:
The authorities make it clear that in exercising the discretion [to receive further evidence] the Court is not constrained by the factors relevant at common law as enunciated in Orr v Holmes and Another [1948] HCA 16; (1948) 76 CLR 632 and Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435. That is not to say that the common law factors are not relevant, only that they are not the only relevant factors. In many cases it would be most material to consider whether the evidence could have been called at trial and, if it could have been, the reasons it was not, and the extent to which the further evidence had the ability to affect the result.
At [119] the Court further explained:
...it should be noted that it is well-established by the authorities that the power in s 27 of the Federal Court of Australia Act 1976 (Cth) and equivalent sections in other Acts is a remedial power and that an important consideration in terms of the exercise of the power is whether the further evidence would have produced a different result had it been available at the trial or, at least, was likely to have produced a different result.
(Citations omitted)
58.It follows that the key questions in determining whether to permit a party to adduce further evidence on appeal are:
(a)Whether the evidence was reasonably available to be led at the time of the primary hearing;
(b)Whether the failure to put the material into evidence was due to mistake or oversight (Nouri v Australian Capital Territory [2020] ACTCA 1 at [86]);
(c)Whether there was any irregularity attendant on the primary proceedings which may have prevented a party from putting his or her case effectively; and
(d)Whether the further evidence would have made a difference in terms of the primary decision (Head v Evans [2020] ACTCA 26 at [34]).
These observations were recently quoted by this Court in Ryan v Bunnings Group Limited (No 3) [2022] ACTCA 29 at [8], and were applied to an application to adduce further evidence in that case.
It is important to emphasise that the key questions identified by Collier J arise in a context where the receipt of further evidence is exceptional. The starting point, at least in civil proceedings, is that parties are bound by the way they conduct their cases at first instance. The trial should not be regarded as a mere “preliminary skirmish” in the expectation that the real issues will emerge in the appeal: Coulton v Holcombe (1986) 162 CLR 1, 7–8 (Gibbs CJ, Wilson, Brennan and Dawson JJ). That observation applies both to the arguments that the parties advance and the evidence on which they seek to base those arguments. The essence of the appellate function is identifying and curing error in the judgment at first instance, not hearing the case afresh.
Normally, therefore, further evidence is not to be countenanced unless it is highly significant (if not actually determinative) and either it was unavailable at the trial or there was a very good reason for not adducing it. In order to be persuaded of those matters, the Court usually needs to know with some particularity what the proposed evidence is (ie, the document that would be tendered or the affidavit that would be read). Thus, r 5606 of the Court Procedures Rules 2006 (ACT) requires an affidavit stating (among other things) the evidence that the Court is to be asked to receive. A general plan to call witnesses and see what emerges is inconsistent with the role of an appellate court.
The proposed further evidence
Mr Hurst-Meyers identified the evidence he sought to adduce in the appeal as the contents of two annexures to an affidavit which he filed on 5 July 2022. He addressed these annexures in detailed oral submissions. Mr Evelyn, who appeared for Mr Hoy, also made submissions. Mr Evelyn provided a useful document which, as well as making observations about the individual documents Mr Hurst-Meyers seeks to tender, records that some of these documents were in fact received into evidence.
Annexure 1
Annexure 1 is what the primary judge referred to in his reasons at [12] as the “red folder” which Mr Hurst-Meyers attempted to rely on in the proceeding below. As noted by his Honour, some of the documents contained in this folder had already been received as part of Mr Hoy’s evidence. Other documents contained in the folder were permitted to be tendered by Mr Hurst-Meyers, even though he had not followed the directions that were made for filing of evidence in the proceeding. I was informed by Mr Evelyn, and have no reason to doubt, that all of the documents contained in the folder and tendered by Mr Hurst-Meyers were received into evidence. (Of course, if tender of a document had been rejected by the trial judge, it would not be appropriate to bring it in as “further evidence” by an application of the present kind. The judge’s ruling would need to be challenged in the substantive appeal and shown to be materially wrong.)
What remains of Annexure 1 is therefore a series of documents which Mr Hurst-Meyers had assembled for the purpose of the proceeding, had with him in the courtroom, but (for whatever reason) did not tender. As the defendant in the proceeding (and having cross-examined Mr Hoy), he had a full opportunity to consider whether any of these documents should be tendered before closing his case. Even making an allowance for the fact that he was unrepresented, these circumstances weigh very strongly against a grant of leave to adduce any of this material in the appeal. It would have to be shown, at least, that one or more of these documents constituted such powerful evidence that it would have led to a different result if it had been tendered. None of the documents in Annexure 1 that are not already in evidence comes close to meeting that standard.
Annexure 2
Annexure 2 is a collection of documents assembled by Mr Hurst-Meyers for the purpose of the appeal, organised behind 35 tabs which are numbered 1–31 and then A–D. The documents behind tabs 5, 6, 12–15, 17, 22, 24 and D are already in evidence, as is a text message found behind tab C. They do not need to be discussed further. The remaining documents in Annexure 2, rather than being analysed one by one, can be addressed in the following categories.
First, there are two affidavits sworn on 4 July 2022.
(a)The first is from a Mr Clive Bevan, who deposes that he heard Mr Hoy “confirm that he signed a contract of sale” with Mr Hurst-Meyers and that he (Mr Bevan) viewed the contract of sale in which Mr Hoy “paid a $200,000 deposit for this block of land, with a further $50,000 owed.” Neither of these facts, if true, materially advances Mr Hurst-Meyers’s case. First, it is not in dispute that Mr Hoy signed the sale contract. Second, Mr Bevan does not say when he viewed the contract; and it is already established that a version of the contract exists in which the sums he refers to are mentioned.
(b)The second affidavit is from Ms Charmayne Hurst-Meyers, apparently a relative of Mr Hurst-Meyers. She deposes that she lived for many years on the land. She says that she is “aware” that Mr Hoy “purchased a block of land” at the site and “had signed a contract of sale” with Mr Hurst-Meyers. She says that she saw the contract of sale signed by Mr Hoy, and “to my knowledge a $200,000 deposit for the block of land was paid”. As noted earlier, it is not in dispute that Mr Hoy signed the sale contract. The important assertions in the affidavit are in the form of conclusions which would very likely be successfully objected to; and the source of Ms Hurst-Meyers’s knowledge of these matters is not identified. If this affidavit is admissible at all, it is unlikely to be given significant weight.
Secondly, there are several email exchanges between Mr Hurst-Meyers and Ms Kerry Ward, who was a real estate agent in South Australia at relevant times. Ms Ward was apparently involved in marketing blocks in the subdivision of the land. Several of these emails were sent after Mr Hoy had signed the sale contract, and it is therefore difficult to see how they have any bearing on questions as to its legal effect (tabs 7, 29, 31). Others are already in evidence, either in redacted form or contained in other documents (tabs 4, 8, 30). All of the correspondence involving Ms Ward dates from 2016, and there is no suggestion that it was not available to be tendered at the trial.
Thirdly, there are site plans and Council documents relating to development approval for the division of the land (tabs 9, 10). The site plans date from May 2017 and the first of the Council documents is a letter dated December 2021. The second Council document is a letter dated 26 May 2022, which clearly could not have been tendered at the trial. However, all of these documents were created long after the execution of the sale contract and cannot shed any light on its intended effect. Their only possible relevance to matters in issue is that the Council documents indicate the grant of extensions of time for development approval to divide the property in question. This could be relevant to the current status and legal effect of the sale contract, if there were also evidence of the parties to that contract having agreed to a variation of the clause referred to at [6(c)] above. However, although Mr Hurst-Meyers asserted the existence of such an agreement from the bar table, there is no evidence to support that assertion.
Fourthly, there are email exchanges between Mr Hurst-Meyers and various contractors and officials between late 2016 and late 2018 concerning work on the land and the obtaining of various approvals. There is no indication that these exchanges were not available to be tendered in the proceeding below. They indicate that development of the land was proceeding. In some instances, the relevant email chain includes a message from Mr Hurst-Meyers forwarding some or all of the material to Mr Hoy, usually without comment (tabs 16, 18, 19, 20 (which repeats part of 19), 21, 26, 27); but there is no confirmation that Mr Hoy received or read these emails, let alone any response from him. In other instances, the material was not forwarded to Mr Hoy (tabs 25, 28, 29). The fact that work on the development was proceeding tells the Court nothing about the legal relationship, at any relevant time, between Mr Hurst-Meyers and Mr Hoy. The fact that Mr Hurst-Meyers was often (but not always) moved to report on progress to Mr Hoy, albeit in a somewhat perfunctory manner, may indicate a belief on his part that the two were business partners, or even possibly that Mr Hoy remained committed to the purchase of a block of land in the development. However, it does not shed any light on the mutual intention of the parties when they signed the sale contract; nor does it begin to establish any subsequent variation of that contract to remove the condition referred to above.
Fifthly, an email from Mr Hoy to Mr Hurst-Meyers dated 18 August 2016 records that, after what was apparently a considerable delay, he had been put in funds by a superannuation fund and was now in a position to make a payment of $150,000 (tab 23). Again, there is no suggestion that this was not available to be tendered in the proceeding below. The fact that Mr Hoy received money by way of a superannuation benefit resulting from the death of his wife is not in contest. The date of the email and the amount discussed are broadly consistent with Mr Hoy being under a contractual obligation to pay $200,000, as asserted by Mr Hurst-Meyers. However, these matters are also at least broadly consistent with the funds being needed for the purpose of the partnership agreement which was executed on the same day as the email was sent. Mr Hoy made a payment of $179,000 the following day, and two further amounts in September and October. Thus, the email indicates that he had $29,000 at his disposal before 18 August. This pattern of payment is not obviously more supportive of one case theory than the other.
Sixthly, there are three collections of documents which have no connection at all with the subject matter of the proceeding. It appears that Mr Hurst-Meyers wishes to tender them in order to contradict statements made in oral evidence by Mr Hoy, or otherwise to attack his credibility. The first collection (tab A) relates to assistance that Mr Hurst-Meyers provided to Mr Hoy in connection with an ultimately successful medical negligence claim arising from the death of his wife. This is apparently intended to show the existence of a close and supportive relationship between Mr Hoy and Mr Hurst-Meyers, in contrast to an impression that he sought to convey in his oral evidence. The second collection (tab B) relates to a separate property dealing involving Mr Hoy and Mr Hurst-Meyers. It is apparently intended to show that Mr Hoy, in contrast to the impression that he attempted to convey in his evidence, is intelligent and astute in contractual dealings. (I note here that the primary judge expressed serious reservations about Mr Hoy’s attempt to portray himself as an “amateur” participant (at [23]), and about another aspect of his evidence (at [24]). His Honour did not pursue these points further because the credibility of witnesses was not determinative.) The third collection (tab C) is a set of documents relating to unrelated criminal proceedings against Mr Hoy arising from his arrest in June 2016.
The first thing to note about these documents is that their only relevance is to the credibility of Mr Hoy and they are prima facie not admissible for that purpose: Evidence Act 2011 (ACT) (Evidence Act), s 102. Section 106 of the Evidence Act allows a document to be tendered, going to the credibility of a witness, if the substance has been put to the witness in cross-examination and denied or not agreed to. Thus, these documents can only be brought in if their substance was put to Mr Hoy in cross-examination at the trial (which has not been demonstrated) or if Mr Hoy is called to give further evidence, further cross-examination going to his general credibility is permitted, and the documents are put to him in that context. Mr Hurst-Meyers does seek to call Mr Hoy in the appeal (a matter which I will consider below). However, even if that application were successful, the Court hearing the appeal is unlikely to permit a general attack on his credit which could have been made in the proceeding below. Further, if cross-examination along those lines is permitted, that will be the appropriate time to put some or all of these documents to Mr Hoy and then seek leave to tender them.
The second thing to note about these documents is that all of them came into the possession of Mr Hurst-Meyers before the commencement of the proceeding below. When Mr Hoy gave what he saw as unsatisfactory oral evidence, it was open to Mr Hurst-Meyers to put these matters to him. It may be, as Mr Hurst-Meyers told me from the bar table, that Mr Hoy’s evidence took him by surprise. However, even for an unrepresented litigant, leave to adduce further evidence in an appeal requires more than having been insufficiently prepared to cross-examine a witness who turned out to be difficult.
Proposed witnesses
The document behind tab 3 of Annexure 2 is not a piece of evidence, but a list of the witnesses Mr Hurst-Meyers wishes to call in the appeal. They fall into three groups.
First, there are two persons who gave evidence at the trial. One of these was Mr Poole, whose oral evidence was found by the primary judge not to take Mr Hurst-Meyers very far in his attempt to establish that the $200,000 paid by Mr Hoy was an amount payable under the sale contract. Mr Hurst-Meyers hopes to be able to elicit more detail from him. There is no reason why this should be allowed. An appeal is not an opportunity for the parties to improve upon the factual cases that they ran below. Recalling Mr Poole would require an opportunity for Mr Hoy’s counsel to cross-examine him, creating the danger of turning the appeal into a second trial.
The other witness proposed to be recalled is Mr Hoy. Apparently, Mr Hurst-Meyers wishes to resume his cross-examination of Mr Hoy, possibly put further documents to him, and either obtain useful answers or discredit his evidence. This would be a most unusual course, not least because Mr Hoy (who gave evidence in his own case below) would become a witness in Mr Hurst-Meyers’s case in the appeal. Mr Hurst-Meyers would require leave under s 38 of the Evidence Act if he wished to question Mr Hoy as if he were cross-examining him. Depending on the evidence that emerged, it might well be unfair to deny Mr Hoy’s counsel the opportunity to cross-examine his own client. The potential for the appeal hearing to become lengthy, and to become merely a second round of the trial, is obvious.
Secondly, Mr Hurst-Meyers wishes to call the two witnesses from whom he has obtained affidavits. Of course, it would necessarily follow from the reading of their affidavits that these witnesses might need to be available for cross-examination by Mr Hoy’s counsel. However, I understood from Mr Hurst-Meyers’s submissions that he also wishes to ask them questions by way of examination-in-chief. This course would require leave, even in a first instance hearing, in the case of a witness whose affidavit had gone into evidence. The suggestion that this might occur in an appeal demonstrates a basic lack of understanding of the appellate function of the Court. The affidavits that the two witnesses have sworn are to be understood as the high water mark of their evidence. There is no reason why they should be allowed to be called to give oral evidence-in-chief, so that Mr Hurst-Meyers can find out at the appeal hearing whether they have more to offer.
Thirdly, Mr Hurst-Meyers wishes to call several persons who did not give evidence below and who have not provided affidavits. The only indication of what they might say was that given by Mr Hurst-Meyers from the bar table. Before mentioning them individually, I note that it is highly unsatisfactory for an appellate court to be asked to receive oral evidence of unknown duration and with no real idea of what that evidence will be. It is particularly unsatisfactory in a matter where directions were made for the hearing at first instance to proceed on affidavit evidence, and the hearing did proceed substantially in that way. The proposed witnesses are as follows.
(a)Ms Kerry Ward has been mentioned above. She was the real estate agent in South Australia who appears to have been retained by Mr Hurst-Meyers to market blocks of land in the subdivision he was seeking to create. She assisted Mr Hurst-Meyers in providing instructions to purchasers about filling in contract documentation, although I note that the emails in which she did this either postdate the sale contract in the present case or are already in evidence. It is not apparent that she had any direct dealings with Mr Hoy or any involvement in filling in the details of the sale contract that he signed. Mr Hurst-Meyers told me from the bar table that he had attempted to call Ms Ward to give evidence in the proceeding below but had only been allowed to call Mr Poole; however, my search of the transcript has not revealed any discussion at the trial about calling Ms Ward.
(b)Mr Daniel Bason is one of the other persons who is mentioned, along with Mr Hoy, in an email from Mr Hurst-Meyers to Ms Ward on 18 July 2016. In submissions, Mr Hurst-Meyers referred to these persons as prospective purchasers of land, although they are described in the email as his “business partners”. Mr Hurst-Meyers also indicated that he did not expect Mr Bason to remember the names of other persons mentioned in the email (and there is no evidence that the particular email was sent to him). It is thus completely unknown what, if anything, Mr Bason’s evidence could add to the factual substratum of the case. It should also be noted that Mr Bason’s identity and involvement must have been well known to Mr Hurst-Meyers during the course of the proceeding below, and no explanation has been offered as to why evidence was not adduced from him.
(c)Ms Liza Hurst-Meyers is Mr Hurst-Meyers’s former wife. She was also described as a “business partner” in the email to which I have just referred. In submissions, he described her as having a sound knowledge of the business dealings in which he was involved at the relevant time. He also said, however, that she would not give evidence willingly and it would be necessary to issue a subpoena to her. The potential for her evidence to shed useful light on the issues in the proceeding is unknown. Again, Ms Hurst-Meyers and her connection (if any) with the issues in dispute must have been well known to Mr Hurst-Meyers for many years. No explanation for the decision not to adduce evidence from her in the trial has been provided.
(d)Ms Kim Bolas is Mr Hurst-Meyers’s former solicitor. I was told that she has acted for him in several contested matters, and also acted for him at early stages of the proceeding below. Mr Hurst-Meyers informed me that he wished to have Ms Bolas give evidence about a conversation she had had with Mr Hoy and his legal team in the court precincts, although he had not sounded out with her whether she considered that conversation to be privileged. The subject matter of the conversation was not explained to me. However, to the extent that anything said during the conversation sheds light on the issues in the appeal, it seems almost certain that it was conveyed in circumstances that would attract the operation of s 131(1) of the Evidence Act (unless one of the circumstances referred to in s 131(2) is made out). Before allowing Ms Bolas to be called it would be necessary for the Court, at least, to know the exact subject matter of her evidence and to be able to ascertain whether s 131(1) applies to it. Again, there is nothing to indicate that Ms Bolas was not available to give evidence for Mr Hurst-Meyers at the trial, and no explanation of why she was not called.
(e)Ms Margaret Lilburne and Ms Christiana Wolf were, according to Mr Hurst-Meyers, present at a dinner close to the time the sale contract was executed at which the matter was discussed. It is not apparent that either of them had any direct dealings with Mr Hoy or that they were witnesses to any discussion between Mr Hoy and Mr Hurst-Meyers. To the extent that either of them could give evidence that was admissible, there is no basis to conclude that that evidence would carry such weight as to influence the outcome. Mr Hurst-Meyers told me from the bar table that he had only recently been reminded of the conversation in which Ms Lilburne and Ms Wolf were involved. This explanation was not put before me in the form of evidence. Even if it could be considered a satisfactory explanation of why no attempt was made to obtain evidence from them in the proceeding below, their potential evidence (which also has not been foreshadowed except by statements from the bar table) appears so tangential that leave to call them to give oral evidence-in-chief could not be justified.
Orders
The application to adduce new evidence in the appeal must be dismissed.
The Application in Proceeding filed by Mr Hurst-Meyers on 22 June 2022 also sought an order in substance vacating the deadline that has been imposed for the parties to settle corrections to the transcript and file a revised appeal index. This was on the understanding that the matter was listed before a Registrar for settling of the appeal papers on 14 July 2022. That listing has since been moved to a later date (21 July 2022), but the deadline for the parties to file relevant documents has remained the same. I will grant the parties liberty (to the extent that it is needed) to approach the Registrar by email to seek an amendment to the timetable.
The orders of the court will be as follows:
(1)The Application in Proceeding filed on 22 June 2022 is dismissed.
(2)The parties have liberty to approach the Registrar seeking amendments to the timetable for settling of the appeal papers.
(3)Costs of the Application are reserved.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett. Associate: Date: |
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