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
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
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
Decision
Reasons for decision
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