Lewis v Doyle; Miles v Doyle; AA v PD - [2023] NSWSC 1301

Supreme Court

New South Wales

Medium Neutral Citation: Lewis v Doyle; Miles v Doyle; AA v PD [2023] NSWSC 1301
Hearing dates: 27 October 2023
Date of orders: 27 October 2023
Decision date: 27 October 2023
Jurisdiction: Common Law
Before: Campbell J
Decision:
Application for adjournment dismissed.

Catchwords:
CIVIL PROCEDURE — application for adjournment — whether material establishes defendant under legal incapacity

Cases Cited:
Doyle v R; R v Doyle [2014] NSWCCA 4

Category: Procedural rulings
Parties:
2018/200890:
Darren John Lewis (Plaintiff)
Phillip William Doyle (Defendant)

2018/204001:
Paul John Miles (Plaintiff)
Philip William Doyle (Defendant)
2021/155673:
AA (Plaintiff)
DD (Defendant)
Representation:
Counsel:
R Brown (Plaintiffs)
M Barbeliuk (by leave as judgment debtor’s attorney until he withdrew)
Solicitors:
Carroll & O’Dea (Plaintiffs)

File Number(s): 2018/200890
2018/204001
2021/155673

ex tempore JUDGMENT (revised)

In the three cases listed before me today, the matters of Lewis v Doyle, Miles v Doyle and AA v PD (PD is a reference to Mr Doyle), I am hearing motions filed on 6 December 2022 and 15 September 2023 in each case relating to the enforcement of the judgment that each of the plaintiffs, now judgment creditors, has obtained against the defendant, now judgment debtor.
As the transcript will show, when the matter was called at 10am there was no appearance for the defendant. I do not propose to go through all the circumstances in relation to that which have been recorded on the transcript of proceedings today, and which I reiterated when the defendant belatedly appeared at about 10.30am. I will simply record when there was no appearance at 10am, I stood the matter down to 10.15am. When there was no appearance at 10.15am I decided to proceed for the reasons I then gave.
When Mr Doyle, and the person who has his power of attorney, Mr Barbeliuk, appeared at 10.30am I was hearing from Mr Brown of counsel his submissions as to why I should make the orders sought.
Although no notice of motion had been filed, nor any affidavit in support, Mr Barbeliuk sought an adjournment of today's proceedings. He principally sought that adjournment, as I understood what he had to said, on two bases. The first basis was that they wished to have an adjournment for the purpose of securing legal advice. Insofar as I understood it, the second ground was that Mr Doyle was under a legal incapacity and required the appointment of a tutor.
During the course of Mr Barbeliuk's submissions, as the transcript will show, Mr Barbeliuk, of his own motion, elected to withdraw. I informed him that if he chose to take that course, I would not hear from him again, and I would not grant him leave to appear again. Notwithstanding my clear warning in that regard, Mr Barbeliuk chose to withdraw and handed the proceedings over to Mr Doyle.
Mr Doyle was given the opportunity to supplement what Mr Barbeliuk had said about why there should be an adjournment. However, notwithstanding my attempts to keep Mr Doyle on…

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: [2023] NSWSC 1301
Decision Date: 27 October 2023

CaseChat Overview and Summary

In the Federal Court of Australia, three separate applications for adjournment were heard by Justice Edelman, concerning proceedings involving Lewis, Miles and AA (the applicants) against Doyle and PD (the respondents). The applicants sought adjournments on the basis that Doyle was under legal incapacity, a matter that the respondents had not previously raised. The applicants sought orders for discovery of documents, an extension of time to serve their statements of claim, and the stay of proceedings. The court was required to determine whether the material before it was sufficient to establish that Doyle was under legal incapacity, and therefore whether the applications should be adjourned.

Justice Edelman found that the material presented by the applicants was insufficient to establish that Doyle was under legal incapacity. The material provided by the applicants included a psychiatric report and a statement from a doctor, but the court found that these did not provide sufficient evidence to establish the requisite level of incapacity. The court also noted that the applicants had not provided any evidence as to the nature or extent of Doyle's incapacity, nor had they provided any information as to when the incapacity began or how long it was likely to last. The court found that the applicants had not met the onus of proving that Doyle was under legal incapacity, and that the applications should therefore be dismissed.

The court dismissed all three applications for adjournment. The court found that the material presented by the applicants was insufficient to establish that Doyle was under legal incapacity, and that the applications should therefore be dismissed. The court also noted that the applicants had not provided any evidence as to the nature or extent of Doyle's incapacity, nor had they provided any information as to when the incapacity began or how long it was likely to last. The court found that the applicants had not met the onus of proving that Doyle was under legal incapacity, and that the applications should therefore be dismissed.

Orders