Mysko v Express Cargo Services
[2023] SASCA 115
•2 November 2023
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MYSKO v EXPRESS CARGO SERVICES
[2023] SASCA 115
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice Doyle and the Honourable Justice Bleby)
2 November 2023
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL - PROCEDURE
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT
Application for leave to appeal against a decision of a single judge refusing to adjourn an appeal hearing.
The applicant’s appeal is listed for hearing on Wednesday, 8 November 2023. The applicant has not complied with orders relating to the timetabling and preparation of the appeal.
On 17 October 2023, the applicant filed an interlocutory application and accompanying affidavit requesting an adjournment of the appeal to a date in February 2024.
The single judge concluded that no proper basis for an adjournment had been established as no evidence was provided to support the applicant’s claims.
Held (by the Court), dismissing the application:
1.The decision to refuse the application for an adjournment was an interlocutory decision directed only to the management of the appeal. It is necessary for the applicant to show both error and a resulting substantial injustice if the appeal were not adjourned; the applicant has done neither.
Express Cargo Services Pty Ltd v Mysko [2023] SASC 11, considered.
MYSKO v EXPRESS CARGO SERVICES
[2023] SASCA 115Court of Appeal – Civil: Doyle and Bleby JJA
THE COURT: The applicant has appealed against a decision of this Court granting declarations and permanent injunctions against her and in favour of the respondent, on account of her contract of employment with the respondent.[1] The Notice of Appeal was filed on 2 May 2023. On 14 July 2023, the appeal was listed for hearing on Wednesday, 8 November 2023. There have since been orders setting and adjusting the timetable for preparation of the appeal. The applicant has not complied with that timetable as adjusted.
[1] Express Cargo Services Pty Ltd v Mysko [2023] SASC 11.
On 17 October 2023, the applicant filed an interlocutory application, supported by an affidavit, seeking to adjourn the appeal. Livesey P heard that application on 18 October 2023.
Livesey P refused the application and gave brief reasons. Those reasons are the subject of a written ruling. His Honour found that the applicant’s affidavit did not contain any facts explaining the need for an adjournment. He noted that at the hearing of the application, the applicant said she was in the process of engaging lawyers with the benefit of some funding provided by others. She provided no evidence about that or about any retainer. She also said in submissions that she and family members had been unwell. Again, she gave no evidence in support of that claim.
His Honour concluded that no proper basis for an adjournment had been disclosed. He refused the application.
The applicant now seeks to appeal against Livesey P’s refusal to adjourn the hearing of the appeal.
The Notice of Appeal is lengthy. It contains paragraphs that express the applicant’s views about the merits of the underlying matter. It also states that the appellant is engaging a lawyer, as she needs one, and that she decided to engage lawyers after her family, and she, were unwell.
The separately stated Grounds of Appeal appear to be directed to the substantive underlying issue, not to Livesey P’s reasons for refusing the application for an adjournment. The orders sought extend not only to an order granting the adjournment, but to orders that are manifestly directed to obtaining relief in the underlying action.
The grounds on which permission to appeal is sought are of a similar nature. However, it is clear from the first ground that on the topic of the adjournment, the applicant contends that Livesey P erred in denying her request for an adjournment until February 2024, in order for her to obtain legal representation and for medical reasons.
The decision to refuse the application for an adjournment was an interlocutory decision, directed only to the management of the appeal. It would be necessary for the applicant to show both error on the part of Livesey P and a resultant substantial injustice if the appeal were not adjourned. The applicant has done neither. She has not shown that Livesey P erred in his conclusion that she had not given evidence in support of her position that she was obtaining legal representation, or that her preparation was compromised by illness on the part of her or her family members. Manifestly, the affidavit evidence she relied on in support of the application did not provide evidence of these matters.
The applicant sought to rely on medical evidence that was exhibited to an affidavit. That affidavit comprises a GP mental health treatment plan dated 17 October 2023. The report identifies the applicant's reasons for presenting as depression and anxiety.
This report was not before Livesey P. It cannot have been an error for Livesey P not to have taken this into account when exercising his discretion to refuse the application. However, even if we were to have to regard to this report, it does not provide a basis for concluding that Livesey P erred or otherwise in refusing to adjourn to appeal.
As Livesey P noted on dismissing the application, if lawyers are retained and require more time for further preparation, a further application can be made on proper evidence.
The application for permission to appeal against the decision to refuse the application for an adjournment is dismissed.
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