Thorp v Hudson [No 2] - [2022] WASCA 76

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   THORP -v- HUDSON [No 2] [2022] WASCA 76
CORAM:   MURPHY JA
MITCHELL JA
VAUGHAN JA

HEARD:   24 JUNE 2022
DELIVERED          :   24 JUNE 2022
PUBLISHED           :   27 JUNE 2022
FILE NO/S:   CACV 5 of 2020
CACV 90 of 2020

BETWEEN: DOUGLAS HENRY ALBERT THORP
Appellant

AND

PAUL DOUGLAS HUDSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER SANDERSON
Citation: NATIONAL AUSTRALIA BANK LIMITED -v- THORP [2019] WASC 394
File Number            :   CIV 1515 of 2019

Catchwords:

Practice and procedure - Late applications to vacate appeal hearings - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4A, r 4B

Result:

Applications dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	No appearance

Case(s) referred to in decision(s):

Nil

REASONS OF THE COURT:

The appellant, Mr Thorp, applied by two applications in an appeal dated 23 June 2022 to vacate the appeal hearings in appeals CACV/5/2020 and CACV/90/2020.
The applications to vacate were supported by Mr Thorp's affidavit sworn 23 June 2022.
Relevantly, Mr Thorp deposed that he had, for some time, been in receipt of medical attention in regard to a serious cardiac condition that required surgery and ongoing recovery. The nature of the cardiac condition was unspecified. In attachment 'DT-1' to the affidavit Mr Thorp disclosed that he has been taking cardiac medications since September 2020. Accordingly, we infer that Mr Thorp's cardiac condition manifested by at least September 2020 - nearly two years ago. Mr Thorp's affidavit also referred to a medical certificate from a Dr Wong of Westminster Medical Clinic. That certificate is attachment 'DT-2' to the affidavit. Dr Wong, a general practitioner, certified that Mr Thorp has been affected by his heart failure with difficulty concentrating and feeling malaise. Dr Wong said that Mr Thorp will be unfit to attend to any aspect of his court case from 23 June 2022 to 23 September 2022. However, in his affidavit Mr Thorp sought more than a three‑month adjournment - asserting that he should be well enough within the next six months.
Mr Thorp said that he was not in a position to proceed with the appeals and had not been able to obtain legal representation. Mr Thorp said that he is pursuing the matter of legal representation.
It is apparent, however, that Mr Thorp has access to legal advice. In Mr Thorp's email to the Court of Appeal office dated 17 June 2022 that is part of attachment 'DT-1' Mr Thorp refers to his legal adviser and potential representative.
In considering whether to vacate the appeal hearings the court evaluated the interests of justice informed by the goal and objects in O 1 rr 4A and 4B of the Rules of the Supreme Court 1971 (WA) and the proper principles of case management. The public interest in the efficient use of court resources is also a relevant consideration in the exercise of the discretion to adjourn.
There were two appeals before the court.
Appeal CACV/5/2020 concerns orders made on 10 December 2019. The appeal notice was lodged on 21 January 2020. The Court of Appeal Office created appeal books for Mr Thorp in October 2020. Mr Thorp requested various deferrals of a listing of the appeal for hearing due to his medical condition. However, on 24 February 2022 (ie 4 months ago) Mr Thorp was issued with a notice of hearing informing him that the appeal was to be heard on 24 June 2022.
Appeal CACV/90/20 concerns interlocutory orders made on 18 June 2020. The appeal notice was lodged on 4 August 2020. Again, the Court of Appeal Office created appeal books for Mr Thorp in October 2020. Again, Mr Thorp requested various deferrals of a listing of the appeal for hearing due to his medical condition. However, on 24 February 2022 (ie 4 months ago) Mr Thorp was issued with a notice of hearing informing him that the appeal was to be heard on 24 June 2022.
We were not satisfied that it was in the interests of justice that the appeal hearings be vacated. Accordingly, the applications to vacate were refused with reasons to follow. These are our reasons for refusing to vacate the appeal hearings.
The medical certificate proffered by Mr Thorp is perfunctory. It does not refer to when Dr Wong most recently examined Mr Thorp (if, indeed, Dr Wong has conducted any recent examination of Mr Thorp). It does not refer to the medications that Mr Thorp takes, if any, or any ongoing side effects. It does not explain why, almost 21 months after Mr Thorp's medical condition manifested, Mr Thorp is still unable to participate in an appeal hearing - although, self-evidently, Mr Thorp will have been attending to his normal day-to-day activities for some time since September 2020. The medical certificate does not offer any reasons for the opinion expressed. Importantly, it does not differentiate between a conclusion that Dr Wong might have reached based on his own observations and a conclusion based on what has been said to him by Mr Thorp.
We were not satisfied that the medical certificate provided a sufficient reason for not proceeding with the appeal hearings.
In terms of proceeding with the appeal hearings on their allocated day, there was an absence of real prejudice to Mr Thorp. Mr Thorp's argument is contained in his written materials. The respondent does not appear to contradict the appeals. Mr Thorp would not need to listen and respond to any argument advanced on behalf of the respondent. To the extent that Mr Thorp wished to amplify his written submissions by oral submissions he could do so. As, at his request, Mr Thorp appeared by telephone link, he was able to make his oral submissions without the pressure that arises from appearing in court.
The appeals have been on foot for a considerable time. Their resolution should not be further delayed without good reason. Doing so would be contrary to case management principles and the interests of justice.
Mr Thorp was aware of the date of the appeal hearings for four months. He had ample time to prepare the oral submissions he wished to make to amplify his written materials. Nothing in the evidence suggested that Mr Thorp had been incapacitated over the last four months and unable to adequately prepare notes to facilitate an oral address.
The applications to vacate were made very late in the day - the afternoon before the appeal hearings. No explanation was given for the lateness. The lateness of the applications was such that, were the applications to be acceded to, the coram would not be able to hear some other parties' appeal. Inevitably the outcome of vacating the hearing of these appeals would be that other litigants would fall back further in the queue of litigants waiting to have their appeals heard. That is not in the interests of justice.
Moreover, so far as CACV/90/2020 is an appeal against interlocutory orders, the delay in its resolution is protracting the determination of the proceedings in the General Division. That is also not in the interests of justice so far as the application to vacate the appeal hearing in CACV/90/2020 is concerned.
For these reasons the court ordered that Mr Thorp's applications in an appeal dated 23 June 2022 to vacate the appeal hearings were dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Vaughan
27 JUNE 2022