Hurst-Meyers v Hoy

Case [2024] FCA 1499

FEDERAL COURT OF AUSTRALIA

Hurst-Meyers v Hoy [2024] FCA 1499

Appeal from: Hoy, in the matter of Hurst-Meyers v Hurst-Meyers [2024] FedCFamC2G 187
File number(s): ACD 17 of 2024
Judgment of: CHEESEMAN J
Date of judgment: 20 December 2024
Catchwords:

BANKRUPTCY AND INSOLVENCY – appeal from a decision of the Federal Circuit and Family Court of Australia – where the primary judge dismissed an application for review of a sequestration order made by a Registrar – where appeal by way of rehearing – where appellant did not identify appellable error – whether grounds of appeal competent – whether to extent grounds not competent, appellable error established – Held: appeal dismissed.

PRACTICE AND PROCEDURE – application to dismiss further amended notice of appeal because not competent – where leave granted on two occasions to reformulate grounds of appeal – whether appeal grounds expose appellable error – Held: some grounds dismissed because not competent.

PRACTICE AND PROCEDURE – application to dismiss appeal for want of prosecution and default of court orders – where appellant has repeatedly failed to comply with the timetable entered by the Court, including where extensions in favour of the appellant had been granted – where appellant appeared at the hearing and sought to press his appeal –whether necessary to determine dismissal application – Held: not necessary to determine.  
Legislation:

Bankruptcy Act 1966 (Cth) ss 43, 52(1), 52(2), 52(3)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256(1)

Federal Court of Australia Act 1976 (Cth) ss 24(1)(d)

Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth)

Federal Court of Australia Rules 2011 (Cth) rr 36.01(2)(c), 36.72(5), 36.74

Cases cited:

Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 72

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCAFC 1833; 117 FCR 424

Cheung v Burness (Trustee) [2016] FCA 1381

CJR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1599

Fox v Percy [2003] HCA 22; 214 CLR 118

Giddings v Australian Information Commissioner [2017] FCAFC 225

Hoy v Hurst-Meyers (No 2) [2022] ACTSC 58

Hoy, in the matter of Hurst-Meyers v Hurst-Meyers [2024] FedCFamC2G 187

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541

Murabito v Westview Frames and Trusses (NSW) Pty Ltd [2024] FCA 1385

Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; 261 CLR 132

Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550
Division: General Division
Registry: Australian Capital Territory
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 97
Date of hearing: 17 December 2024
Counsel for the Appellant: The appellant appeared in person
Counsel for the First Respondent: Ms A Costin
Solicitor for the First Respondent: Elringtons Lawyers

 

ORDERS

ACD 17 of 2024
BETWEEN:

RALPH GEORGE NOEL NANCY HURST-MEYERS

Appellant
AND:

GAVIN ROBERT HOY

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AGLC
Hurst-Meyers v Hoy [2024] FCA 1499
Case
[2024] FCA 1499
Decision Date

CaseChat Overview and Summary

Hurst-Meyers v Hoy is a case involving an appeal against a decision of the Federal Circuit and Family Court of Australia. The appellant, Hurst-Meyers, sought review of a sequestration order made by a Registrar, which the primary judge dismissed. The appeal, heard by way of rehearing, aimed to challenge the primary judge’s decision on multiple grounds. The primary legal issues were whether the appellant correctly identified any appellable error and if the appeal grounds were competent.

The court examined each ground of appeal to determine if they exposed any error by the primary judge. Several grounds were found to be incompetent as they did not comply with the necessary legal standards or did not properly identify any error. For example, the court dismissed grounds that were based on the appellant’s subjective beliefs or that lacked specificity. The court also addressed whether the primary judge's handling of evidence constituted appellable error, concluding that no such error was present.

The court found that, even if some grounds were competent, the appellant failed to establish that the primary judge had made any error. The appellant's inability to clearly identify any specific errors in the primary judge's reasons was a significant factor in dismissing the appeal. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent’s costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

3. In the absence of agreement on the costs payable pursuant to order 2, costs are to be determined by a Registrar on a lump sum basis.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In any event, in relation to both grounds 5 and 6, it is clear that the primary judge did address the appellant’s contentions in relation to Mr Evelyn’s conduct, which the primary judge recorded at PJ [48] to [51], and in determining issue (a) which was framed as whether the respondent, through Mr Evelyn, had frustrated the appellant’s ability to realise properties in which he had equity to obtain funds with which to pay the judgment debt: PJ [53] to [55]. The Evidence Grounds – grounds 7, 9 and 10 Grounds 7, 9 and 10 are extracted in full at paragraph [38]. On their face, these grounds are each a species of complaint about the way in which the primary judge dealt with the evidence. Ground 7 is on its face incompetent. The appellant’s subjective belief about whether his medical certificate was “properly acknowledged” is not a pleading of error upon which a ground of appeal could be founded. In any event there is an additional difficulty with this ground because the appellant did not tender any medical certificate at the hearing before the primary judge and the appellant makes no attempt to demonstrate that the medical certificate to which he refers was relevant to any issue to be determined by the primary judge. Ground 7 is dismissed on the basis that it is not competent. Grounds 9 and 10 are sweepingly broad. These grounds lack the precision required by r 36.01(2)(c) of the Rules. The appellant has not identified the evidence that he contends the primary judge either “ignored” (ground 9) or “dismissed” (ground 10). For the reasons given in relation to ground 5, evidence that is “ignored” does not necessarily amount to an appellable error. It is not clear what is meant by evidence being “dismissed” but it is not appellable error for a primary judge to not accept or afford little or no weight to evidence adduced in a proceeding. The primary judge’s reasons make it clear that his Honour had regard to the evidence insofar as it was relevant to the appellant’s position and admissible. Grounds 9 and 10 are dismissed on the basis that they are not competent. Given the conclusion I have reached on the grounds of appeal, it follows that the appeal will be dismissed. I see no reason why costs should not follow the event. I will make orders accordingly. Dismissal for want of prosecution Given my findings above, it is not necessary to determine the respondent’s application for the appeal to be dismissed under r 36.74 of the Rules. I am satisfied however that having regard to the procedural history of this appeal and the appellant’s breach of Court orders that the respondent’s acted reasonably in filing the application. The respondent’s action in seeking to have the appeal dismissed under r 36.74 of the Rules was a proportionate response to the appellant’s demonstrated inability or unwillingness to cooperate with the Court and the respondent in readying his appeal for hearing within an acceptable period and in an efficient way. In the circumstances, and noting that very little time was taken at the hearing in relation to this application, the respondent's costs of this application will form part of the costs of the proceeding, and be paid by the appellant.CONCLUSION

Decision

Reasons for decision

The respondent raises 11 grounds of objection to the competency of the appeal. By his grounds of objection, the respondent contends that for a variety of reasons, none of the grounds of appeal in the FANOC identify any appellable error on the part of the primary judge. I will address the specific grounds of objection in considering each of the grounds of appeal according to the categories I have identified above.THE PRIMARY JUDGMENT The necessary starting point in an appeal by way of rehearing is to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. In the interests of consistency in nomenclature, I will continue to refer to Mr Hurst-Meyers as the appellant, noting that he was the applicant in the review application before the primary judge. In extracting quotes from the primary judgment in these reasons, I have corrected typographical errors in relation to the spelling of the appellant’s surname. The primary judge correctly instructed himself as to the task his Honour was required to perform pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)in conducting a de novo review of orders made by the Registrar on 29 September 2023, which included an order that the appellant’s estate be sequestrated: PJ [1], [4] to [7]. None of the appeal grounds in the FANOC allege error in the manner in which the primary judge apprehended his statutory task. His Honour next identified the act of bankruptcy relied upon and that the appellant did not dispute that the respondent had satisfied the preconditions for the making of a sequestration order under the Bankruptcy Act 1966 (Cth) and the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) (Bankruptcy Rules). None of the appeal grounds allege error on the part of the primary judge in correctly identifying that these matters were common ground. The primary judge then identified that in substance the appellant sought to resist a sequestration order being made against him on two bases. First, the appellant contended that a sequestration ought not be made against him because he maintained that he was able to pay his debts. The primary judge recorded that in his notice of grounds of opposition to the creditor’s petition, the appellant’s contention was that he was solvent. Appeal grounds 2, and perhaps 3, appear to relate to this aspect of the proceeding before the primary judge. Ground 3 introduces reference to ss 52(1) to (3) of the Bankruptcy Act and the Bankruptcy Rules generally. By reference to the evidence before him, the primary judge addressed proof of the matters in s 52(1) of the Bankruptcy Act and the Bankruptcy Rules at PJ [8] to [12]. The primary judge concluded that the respondent had proved the matters he was required to prove under s 43 and s 52(1) of the Bankruptcy Act and the Bankruptcy Rules: PJ [13]. Accordingly, the primary judge concluded that, subject to the matters on which appellant relied, a sequestration order may be made against his estate: PJ [13].

Ratio Decidendi

Legal Principle Established

In the final paragraph of his reasons, under the heading “postscript”, the primary judge recounted that (at PJ [72]):At 4:48 am on 1 March 2024, being the day on which I had listed the matter for judgment, [Mr Hurst-Meyers] sent an email to my Associate attaching an affidavit Mr Hoy made on 24 April 2020 in the proceeding he had commenced in the ACTSC; and Mr Hurst-Meyers made a number of submissions in his email. I have considered Mr Hurst-Meyers’ email, and read Mr Hoy’s affidavit. There is nothing in this material that causes me to wish to reconsider anything I say in these reasons. CONSIDERATION Before turning to the particular grounds of appeal, it is appropriate to identify at a general level the central difficulty with the appellant’s approach to this appeal. The appellant has not identified in any coherent way any paragraph of the primary judge’s reasons attended by error. That is a striking feature of both the FANOC and the appellant’s oral submissions. When asked to identify by reference to the grounds articulated in the FANOC the errors he contended were made by the primary judge and where in the judgment the alleged error was made, the appellant could not do so. Indeed, my strong impression was that the appellant did not appreciate that it was critical to his prospects of success that he identify appellable error. Instead, the appellant approached the appeal as another hearing de novo, not only of the matters determined by the primary judge, but also of the matters determined in the Supreme Court proceedings, in respect of which he had consented to the dismissal of his appeal. I do not criticise the appellant, who appeared as a litigant in person, for his inability to grapple with the nature of the appeal and what is required in terms of demonstrating error. However, it is inescapable that an appeal by way of a rehearing is an appeal for the correction of error framed by reference to the ground or grounds on which the appellant claims that a judgment is erroneous and the existence of error is an indispensable condition of a successful appeal: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 553 [21], 556 [30], 556 [32] (Gageler J). The necessary consequence of the appellant’s failure to identify and establish appellable error is that the appeal must be dismissed. I have concluded that the appeal to the extent that it is competent must be dismissed. Those parts of the appeal which I have found not to be competent will be dismissed pursuant to r 36.72(5) of the Rules. As the reasons that follow make plain, had I not concluded that some of the grounds of appeal were not competent, I would have been compelled to dismiss those grounds in any event because the appellant failed to demonstrate appellable error on the part of the primary judge in relation to the subject matter traversed by those grounds. The parties approached the appeal by addressing the competency issues concurrently with the substantive topics covered by the appeal grounds. I will address my reasons accordingly.The Residential Contract Grounds – grounds 1, 4, 8 and 11