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 made some directions relating to the conduct of the appeal which are set out at the conclusion of these reasons. These are my reasons for making those orders.
The application for an adjournment
In support of his application, the appellant tendered a number of documents and gave some oral evidence. Most significant for the purposes of his application was the medical certificate prepared by Dr Saba Somasundaram indicating that on a date in August 2022 the appellant suffered a “ST-Elevation myocardial infarction” and a coronary angiogram was performed to insert a stent. It was the doctor’s medical opinion and recommendation that any event that would cause stress or hypertension should be avoided, due to the strain on the appellant’s heart. The doctor indicated that the medical certificate was warranted up until 31 October 2022 by which time a further review of the appellant’s health will have been undertaken. The doctor indicated that the appellant would require at least six months’ recuperation from the “life-threatening medical emergency”, being his second myocardial infarction.
The oral evidence of Mr Hurst-Meyers indicated that the stress of further legal-related activities gave rise to sensations which he associated with the potential onset of a further heart attack. He also gave evidence about the activities concerning the charitable works of a foundation called the Hurst-Meyers Charity Ltd and Caloola Farm, a rural property offering accommodation of some sort. He gave evidence about assistance given to various homeless people or people at risk of family violence, an event involving a visit by Scouts to Caloola Farm and an event involving a visiting Bhutanese spiritual leader. He gave evidence that he had been involved with the preparation for all of these activities and events. Precisely what physical activities this preparation involved on his part was not made clear. The effect of his evidence was that he was usually busy with charitable or other work but was attempting to reduce his involvement and involve other members of the charity’s board as a result of his health condition. His evidence was also that he prioritised the work of his charity over the conduct of the appeal proceedings. He gave evidence of involvement with other legal proceedings both in this court and the Federal Court in South Australia. In relation to the latter, he indicated that he had engaged lawyers for the purposes of, or in contemplation of, those proceedings.
The respondent tendered some documentary material indicating email correspondence about compliance with the orders relating to the preparation of the appeal index, correspondence with Mr Hurst-Meyers that made clear he was aware of the requirements of Practice Direction 1 of 2016 (the Practice Direction), correspondence in relation to proceedings in the Federal Court and correspondence about the process for making corrections to the transcript of the proceedings below.
The position of Mr Hurst-Meyers was that he wished to have the proceedings adjourned for the period covered by the medical certificate. He was content for the progress of the appeal to be delayed to that extent. His submissions did not appear to recognise that the potential for the appeal to be listed for hearing was dependent, at least in part, on the preparation of Appeal Book A in accordance with the Practice Direction.
The position of the respondent was that he wished to have the appeal heard and determined so that the proceedings could be finalised. He identified that the preparation of Appeal Book A would only involve limited further work on Mr Hurst-Meyers’ part. He submitted that if that work was not carried out then the likelihood was that the listing of the matter for hearing would be further delayed so that the matter would be given a hearing date substantially later in 2023 than would otherwise be the case.
Consideration
The judgment from which the appeal has been brought has not been stayed. Corrections to the transcript of the proceedings below have been agreed and documented in a typed schedule. The appellant has not successfully prepared an index for the appeal book for the purposes of the Practice Direction. In response to questions from the court, counsel for the respondent indicated that, if directed by the court to do so, the respondent could prepare the index and the required copies of Appeal Book A within seven days but would seek his costs of doing so.
The issue identified in correspondence between the parties about the need to make corrections to the transcript appeared to me to be one that should not hold up the preparation of the appeal index or Appeal Book A. The transcript corrections appeared to be relatively straightforward and had been appropriately documented in a schedule. It did not appear to me to be necessary that those amendments be marked up on, or otherwise incorporated into, the transcript in this case. It is a case in which it was appropriate to avoid such an additional step and address any corrections simply through the provision of the agreed schedule of corrections.
I did not consider that it was appropriate to adjourn the proceedings in the manner sought by the appellant. It was not appropriate to further delay the progress of the appeal in circumstances where that delay was likely to lead to the appeal only being listed for hearing at a substantially later date. Such a delay would not be fair to the respondent. It would have the effect of increasing the overall cost of the proceedings and the burden upon the resources of the respondent and the court. While I accept the content of the medical certificate, there are only limited steps required to be taken in order to allow the matter to progress and be given a hearing date. It was not necessary to make specific findings about Mr Hurst-Meyers’ capacity to undertake that limited work having regard to the other activities that he disclosed undertaking, or his capacity or willingness to engage others to carry out that work. I considered that ordering him to complete those steps carried a significant risk that either:
(a)they would not be carried out in accordance with the order and the requirements of the Practice Direction; and/or
(b)that there would be an adverse effect on his health as a result of him doing or attempting to do so.
If an adjournment was granted then there was no certainty that, at the conclusion of the period set out in the medical certificate, Mr Hurst-Meyers would be in any better position to properly undertake the required steps. Given the limited nature of the steps that were required and the costs and delays likely to be suffered by the respondent if either the adjournment was granted or Mr Hurst-Meyers was ordered to perform those steps, I considered it appropriate to direct that the respondent undertake those steps.
It is obviously generally undesirable to compel a respondent to take steps which are the responsibility of the appellant. However, such a course is sometimes adopted in circumstances where the costs and delay of the proceedings arising from leaving the steps to a self-represented litigant unwilling or unable to carry them out in a timely fashion and in accordance with the requirements of the court outweigh the prejudice to the respondent of requiring the respondent to take those steps.
While the prima facie position would be that the appellant would be required to pay the costs of the respondent’s compliance with the direction requiring preparation of Appeal Book A, I considered that it was appropriate to reserve those costs until after the appeal book had been prepared in order to be able to deal with the question of costs when it could be seen that the order had been competently complied with and also to ensure that there was no incentive on the part of the respondent to take other than a disciplined approach to the costs of that exercise. In the present case, there is at least a degree of security for the costs that will be incurred by the respondent in relation to the process of preparing Appeal Book A provided by the appellant’s compliance with the order for security for costs.
I considered that it was appropriate to reserve the costs of the application.
Orders
The orders and notes that I made yesterday were as follows:
1.Direct that any corrections to the transcript may, if it is necessary to include them in the appeal book, be included in the appeal book as a schedule.
2.Direct that the respondent by 6 October 2022 is to prepare Appeal Folder A in accordance with paragraph 24 of Practice Direction 1 of 2016 noting that the index is to be prepared by the Respondent and does not need to be agreed.
3.Reserve the question of costs of compliance with order 2 with liberty to apply on 2 days’ notice after 6 October 2022.
4.List the proceedings before the Senior Deputy Registrar on 13 October 2022 at 2:30pm.
5.Reserve the question of costs of this application.
Note:
Once Appeal Folder A is filed, the matter can be given a hearing date.
While liberty has been given in relation to costs, there is no necessity to reagitate the question of costs prior to the hearing of the appeal.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 30 September 2022 |
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