HP Mercantile Pty Limited v Dyce

District Court of NSW|2015-08-20|Before: Black J, Hammerschlag J

Judgment

The defendant, Timothy Dyce, seeks: 1. that the hearing date tomorrow, 21 August 2015, be vacated; and 2. that the proceedings be listed for further directions on a date later than 16 October 2015. The plaintiff, HP Mercantile Pty Limited ("HP Mercantile"), opposes the motion. Mr Dyce relies on two grounds.

MR DYCE'S HEALTH

Firstly, health. Mr Dyce is in the United Kingdom, is self‑represented and appears via audio link. He had an accident on 31 July 2015 and suffered a dislocated thumb and a right‑sided pneumothorax. Pneumothorax is a serious matter commonly involving the presence of air or other gas in the cavity between the lungs and the chest wall causing the collapse of the lung. Mr Dyce said that in his case he was found to have air in a region near the kidney thought to result from a puncture in the lung. It was not thought to be a major break requiring surgery and was expected in time to heal itself.
As of 12 August 2015, Mr Dyce was advised that he "should not undertake a flight which had been planned for next week" and "is not fit to fly until further assessment by a specialist doctor". Mr Dyce submits that, "Doctors will not give me leave to travel internationally for a further six weeks," although there is no evidence by a doctor of this six‑week time frame.

SIMILAR SUPREME COURT PROCEEDINGS

The second issue raised is the circumstance that there are similar Supreme Court proceedings.
On 9 September 2014 the trial of these proceedings commenced. Phillip Clements, a barrister, appeared for Mr Dyce. Submissions were delayed to await the outcome of an appeal of a decision by Black J in HP Mercantile Pty Ltd v Clements [2014] NSWSC 509, a similar matter which involved Mr Clements as a party. Mr Clements was successful in those proceedings but has since passed away.
The appeal by HP Mercantile against Mr Clements' executors required leave, and, for reasons peculiar to that case, the Court of Appeal ultimately declined to hear the appeal (see HP Mercantile Pty Ltd v Kym and Paul Clements [2015] NSWCA 212).
On 8 May 2015 this matter was listed for further hearing on 21 August 2015.
On 31 July 2015 Hammerschlag J in the New South Wales Supreme Court ordered that 86 similar proceedings involving HP Mercantile as plaintiff be listed for hearing on a separate question involving cls 5.2C and 41 of the relevant loan agreements. There are also another four defendants to proceedings in the Supreme Court of New South Wales which are unrepresented and are not listed for hearing on that date, but have been stood over until the outcome of those 86 proceedings.
Mr Dyce submits that as those proceedings involve claims by HP Mercantile similar to the claims that are made against him in these proceedings, the outcome of those proceedings would give clarity to the applicability of the decision in Clements, and that it would assist the parties in these proceedings to await the outcome of those Supreme Court proceedings. If the decision in Clements was upheld and is applicable to the current proceedings, the claim by HP Mercantile would fail.
Mr Dyce submits that since this Court was willing to delay once, to await the outcome of the appeal in Clements, that it should delay again. This would also avoid the "extra time and expense of a twin track approach to the common issue".

THE PLAINTIFF'S POSITION

HP Mercantile was first notified of Mr Dyce's inability to fly via email on 5 August 2015 and was provided with a notice of motion and supporting affidavit on 14 August 2015.
HP Mercantile resists the application on the basis of the lengthy history of this matter, the circumstance that the evidence is already on and apparently complete, and the circumstance that the defendant in this case would not be bound by the decision of Hammerschlag J on the separate question because a single judge of this Court is not bound by the decision of a single judge of the Supreme Court.
As to the last issue, of course the same is true of the four unrepresented defendants in the Supreme Court, that they would not strictly be bound by any decision of Hammerschlag J either. It goes without saying that a decision of a judge of the Supreme Court would be given the utmost respect and weight in respect of the same question being decided in this Court.
It is also relevant that the primary, if not sole, issue in the present case is whether I should follow the decision of Black J. That decision concerns the proper construction of cl 5.2C and cl 5.1 of the loan agreements.
Thus, the case that is being presented before me is presently confined to the very matters that are the subject of a separate determination to be made by Hammerschlag J after a hearing in about three weeks' time. Assuming that that remains the position, it might be thought that the decision of Hammerschlag J has, in one respect, a greater impact on these proceedings, which are currently confined to the separate question his Honour is deciding, than on either the proceedings before him or the four other proceedings with unrepresented defendants, which are presently not so confined.
It is not suggested that Mr Dyce has legal training, experience or ability sufficient to enable him to put submissions on a question of the proper construction of a complicated legal document, and the meaning of a clause in the context of that document. Some matters of importance to him might be overlooked. On the other hand, it seems to be common ground that the proceedings before Hammerschlag J will be conducted with experienced commercial counsel on both sides of the record, thereby increasing the likelihood that all the relevant matters will there be taken into account.

DECISION

The Court has both an implied power as a court (cf Sydney City Council v Ke‑Su Investments Pty Ltd (1985) 1 NSWLR 246 at 252) and a specific statutory power under s 66 of the Civil Procedure Act 2005 to adjourn the hearing of any matter in appropriate circumstances.
This power must be exercised in accordance with the overriding purpose of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005, to facilitate the just, quick and cheap resolution of the real issues in the proceedings (see s 56(1) of the Civil Procedure Act 2005 ) and in accordance with the dictates of justice (see s 58).
It is apparent that Mr Dyce will be unavailable for any hearing tomorrow. That a party is unavailable will usually be a sufficient ground for an adjournment provided such unavailability is not the fault of the party whose interests will be prejudiced by the refusal of the adjournment: see Walker v Walker [1967] 1 WLR 327, Vasiljev v Public Trustee [1974] 2 NSWLR 497 and Petrovic v Taara Formwork (Canberra) Pty Ltd (1982) 62 FLR 451.
I accept that Mr Dyce cannot fly for medical reasons. There is no evidence that it was due to the fault of Mr Dyce. The only alternative would be to conduct the remainder of the hearing entirely by video link. I have no evidence of the cost of conducting a day plus hearing via video link. Given that Mr Dyce is now self‑represented, this would be unsatisfactory.
I take into account, as Mr Versace for HP Mercantile has reminded me, that the statement of claim was filed on 27 June 2012 and the hearing has already been delayed.
On the other hand, if the adjournment is granted and the hearing set down for a date after Mr Dyce is medically able to fly, there is no reason why the hearing cannot proceed and conclude. At that time, the parties would likely also have the benefit of the Supreme Court decision.
There is no substantial prejudice to HP Mercantile other than any costs in preparing for tomorrow's hearing. I recognise that the proceedings before Hammerschlag J may not achieve finality when his judgment is delivered, and given the matters raised in the Clements decision in the Court of Appeal, it might be thought that there is a real prospect of an appeal. However, that would be the same in this case were I to make a decision and, thus, any decision by me would not produce a final outcome any earlier than were I to await the result of the Supreme Court proceedings to be heard next month.
Having the matter adjourned would minimise the costs that are yet to be incurred in these proceedings. It results in Mr Dyce having his arguments in a complex commercial case more fairly presented because of the Supreme Court proceedings.
I raised with HP Mercantile a question about the jurisdiction of the Court to hear a matter that arises out of a commercial transaction. Because of the significant number of similar matters that are the subject of legal proceedings in the Supreme Court and elsewhere, it might be thought that the proceedings raise an issue that has importance in trade and commerce. That may deprive this Court of jurisdiction to hear the matter (see Pt 14 r 2 of the Supreme Court Rules 1970 and Abbott v Klein [2015] NSWDC 45 at [33] ‑ [72], especially [61]).
Taking all those factors into account, I propose to grant the adjournment sought.

COSTS

Mr Dyce seeks that there be no order as to the costs of this motion. Alternatively, that any costs arising be treated as costs in the cause. He submits that he notified HP Mercantile at the earliest opportunity of his need to vacate the hearing and sought its consent. Mr Dyce has also succeeded on this motion.
HP Mercantile should get its costs thrown away by reason of the vacation if it succeeds on its claim. Although HP Mercantile failed in opposing the adjournment, nevertheless, the matter needed to be heard as it involved the vacation of a hearing date. In these circumstances, particularly as there was no actual appearance in court by My Dyce, but only by audio link, it seems to me that the appearance by HP Mercantile was reasonable.
Further, Mr Dyce is self‑represented and so any costs order he obtains would be limited to disbursements. Unqualified persons are not entitled to their costs or the time taken to prepare (see Everett v Neale [2012] NSWDC 73 at [147] and the cases there mentioned).

ORDERS

I considered whether there was any prospect of these proceedings being joined or heard in some way together with the 86 Supreme Court proceedings. However, HP Mercantile has submitted, that those proceedings do not include other proceedings in the Supreme Court where the defendant is unrepresented, so it is likely that even if these proceedings were by some method, such as an application under s 140 of the Civil Procedure Act 2005, transferred to the Supreme Court, they would wait in abeyance until the 86 proceedings in the commercial list were determined.
In that event, the proper course is for the defendant to remain in this Court to await the outcome of those proceedings.
Accordingly, the orders of the Court are: 1. Defendant's notice of motion granted. 2. Vacate hearing date of 21 August 2015. 3. Stand the matter over for further directions to Thursday, 19 November 2015 at 10am before P Taylor SC DCJ. 4. Costs of the notice of motion, including any costs thrown away by reason of the vacation of the hearing date, be costs in the proceedings. 5. Liberty to the parties to apply on 3 days' notice for any variation of the listing on 19 November 2015.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2018

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