Hurst-Meyers v Hoy (No 3) - [2022] ACTCA 50

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Hurst-Meyers v Hoy (No 3)
Citation:	[2022] ACTCA 50
Hearing Date:	29 September 2022
DecisionDate:	29 September 2022
Reasons Date:	30 September 2022
Before:	Mossop J
Decision:	See [16]
Catchwords:	APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Application in proceeding – application to adjourn appeal index listing – where appellant non-compliant with timetable for filing Appeal Book A and suffering medical condition – where limited work required to prepare Appeal Book A – where delay in filing Appeal Book A would result in substantial delay in hearing date – respondent ordered to prepare Appeal Book A – costs reserved
Cases Cited:	Hoy v Hurst-Meyers (No 2) [2022] ACTSC 58 Hurst-Meyers v Hoy [2022] ACTCA 36 Hurst-Meyers v Hoy (No 2) [2022] ACTCA 38
Texts Cited:	Practice Direction 1 of 2016, ACT Supreme Court
Parties:	Ralph George Noel Nancy Hurst-Meyers (First Appellant) RHM Industries Pty Ltd (Second Appellant) Gavin Robert Hoy (Respondent)
Representation:	Counsel Self-represented (First Appellant) M Evelyn ( Respondent)
Solicitors Self-represented (First Appellant) Elringtons Lawyers ( Respondent)
File Number:	ACTCA 20 of 2022
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 20 March 2022 Case Title: Hoy v Hurst-Meyers (No 2) Citation: [2022] ACTSC 58

MOSSOP J:

Introduction

Mr Hurst-Meyers has appealed against a decision of a judge of this court, Hoy v Hurst‑Meyers (No 2) [2022] ACTSC 58. An application seeking leave to adduce further evidence on the appeal was dismissed on 14 July 2022: Hurst-Meyers v Hoy [2022] ACTCA 36. Also on 14 July, the Court of Appeal made an order requiring Mr Hurst‑Meyers to provide security for costs: Hurst-Meyers v Hoy (No 2) [2022] ACTCA 38. The order requiring the provision of security for costs was complied with by 19 August 2022. As a result of the application in proceeding relating to further evidence and the making of the order for security for costs, the timetable for the preparation of the appeal books that had been previously made was interrupted.

On 19 August 2022 the respondent sought to have the matter relisted in order to address the non-compliance by the appellant with the earlier timetable. At some point after the making of the order for security for costs, the appellant had suffered a heart attack. In response to the respondent’s attempts to have the matter relisted to address the preparation of the appeal books, the appellant provided a medical certificate dated 26 September 2022 and sought that the Senior Deputy Registrar adjourn the proceedings until some time after the end of October 2022. The respondent indicated that he did not consent to that course and the matter was referred to the Court of Appeal constituted by a single judge.

The oral application made by the appellant at the hearing on 29 September 2022 was that the appeal be adjourned until a date after 31 October 2022. I declined to make that order and instead…

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: [2022] ACTCA 50
Decision Date

CaseChat Overview and Summary

The case of Hurst-Meyers v Hoy (No 3) involved an appeal by Ralph George Noel Nancy Hurst-Meyers and RHM Industries Pty Ltd against a decision of the ACT Supreme Court. The primary dispute before the Court of Appeal concerned an application by the appellant, Mr Hurst-Meyers, to adjourn the appeal proceedings due to a medical condition. The respondent, Gavin Robert Hoy, opposed the adjournment.

The legal issues before the Court of Appeal were whether to grant the appellant's oral application for an adjournment of the appeal proceedings until after 31 October 2022, and consequently, how to manage the preparation of the appeal books in light of the appellant's stated inability to comply with the established timetable due to his medical condition. The court was required to balance the appellant's health concerns against the respondent's right to have the appeal heard and determined without undue delay, and the practicalities of preparing the necessary court documents.

The court declined to grant the adjournment as sought by the appellant. While acknowledging the appellant's medical condition, evidenced by a certificate detailing a recent heart attack and a recommendation to avoid stress, the court found that the limited work required to prepare Appeal Book A would likely cause substantial delay to the hearing date if left to the appellant. The court reasoned that compelling the appellant to undertake this work carried a significant risk of adverse health effects or non-compliance. Therefore, to avoid further delay and prejudice to the respondent, the court ordered the respondent to prepare Appeal Book A by a specified date, reserving the costs associated with this task. The court also made directions regarding transcript corrections and listed the matter for further directions.

Orders