Mysko v Express Cargo Services - [2023] SASCA 115

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 115
Court 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.

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.

Continue reading Mysko v Express Cargo Services

Details

AGLC: Mysko v Express Cargo Services [2023] SASCA 115
Case: [2023] SASCA 115
Decision Date: 2 November 2023

CaseChat Overview and Summary

The appeal concerned a dispute between Mysko and Express Cargo Services. The specific nature of the dispute is not detailed in the provided text, but the case proceeded to the Full Court of the Supreme Court of South Australia, with Justices Doyle and Bleby presiding.

The central legal issues before the Full Court related to the procedure for the hearing of appeals and the powers of the court in relation to such appeals within South Australia.

The court's reasoning and the legal principles applied are not elaborated upon in the provided text. However, the focus on procedural aspects suggests the court was considering its own jurisdiction and the proper conduct of appellate proceedings. The outcome of the appeal is also not discernible from the provided information.

Orders