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…

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: [2022] WASCA 76
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the Court of Appeal heard an application by Douglas Henry Albert Thorp to vacate the appeal hearings in appeals CACV/5/2020 and CACV/90/2020. The application was brought against Paul Douglas Hudson. The appellant, Mr Thorp, sought to vacate the appeal hearings on the grounds of his medical condition, specifically heart failure, which had been affecting him since September 2020. Mr Thorp provided a medical certificate stating that he would be unfit to attend to any aspect of his court case from 23 June 2022 to 23 September 2022. However, the court found that the medical certificate was perfunctory and did not provide sufficient reasons for not proceeding with the appeal hearings.

The court considered 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 court also considered the public interest in the efficient use of court resources. The court found that Mr Thorp had been aware of the date of the appeal hearings for four months and had ample time to prepare his oral submissions. The court further found that the applications to vacate were made very late in the day and that granting the applications would cause other litigants to fall further back in the queue of litigants waiting to have their appeals heard. Therefore, the court dismissed the applications to vacate the appeal hearings.

The court found that it was not in the interests of justice to vacate the appeal hearings. The court ordered that Mr Thorp's applications in an appeal dated 23 June 2022 to vacate the appeal hearings were dismissed.

Orders