Curran v. Hynes, 2011 NLCA 44

Date: 20110615 Docket: 09/108 Citation: Curran v. Hynes, 2011 NLCA 44 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : TINA CURRAN APPELLANT AND : KEITH HYNES RESPONDENT Coram: White, Harrington and Hoegg, JJ.A.

Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division, 200802U0398 Appeal Heard: June 15, 2011 Judgment Rendered: June 15, 2011 (Orally) Memorandum of Disposition Filed: June 17, 2011 Counsel for the Appellant: Leah Mazerolle Counsel for the Respondent: Joseph Twyne MEMORANDUM OF DISPOSITION White, J.A.: [ 1 ] The respondent Keith Hynes caused an Originating Application to be issued out of the Supreme Court of Newfoundland and Labrador, Trial Division (Unified Family Court) on June 4, 2008 seeking an order in relation to custody of a child and making a claim for division of real property and possession of certain specific chattels. [ 2 ] A hearing was scheduled in relation to the application for September 14, 2009. [ 3 ] The appellant Tina Curran was not present when the matter was called on September 14, 2009. [ 4 ] The applications judge rescheduled the hearing to September 16, 2009 with Ms.

Curran to be advised of the revised date by telephone. [ 5 ] Ms. Curran did not appear on September 16, 2009. The applications judge noted on the record that the court clerk had informed Ms. Curran of the revised date by a phone call from the court. The applications judge then decided to proceed in her absence.

[ 6 ] The applications judge heard oral testimony of Mr. Hynes and submissions of his counsel. He also entered into evidence certain exhibits tendered by Mr. Hynes. [ 7 ] He rendered his oral decision on September 16, 2009, the day of the hearing. [ 8 ] His decision included matters pertaining to custody, access, return of chattels, conduct of an appraisal, and a declaration that Mr. Hynes had an interest in real property. The applications judge also ordered that Ms. Curran pay Mr.

Hynes one-half of the appraised market value of the real property, and that if such payment was not made, the property could be sold to realize the value of Mr. Hynes’ one-half interest. [ 9 ] The applications judge, subsequent to the hearing of September 16, 2009, called the parties back to attend before court. [ 10 ] Ms. Curran, Mr. Hynes and counsel for Mr.

Hynes attended before the applications judge on October 15, 2009 at which time the applications judge advised the parties that subsequent to the hearing of September 16, 2009 he had “second thoughts about the propriety” of proceeding in the absence of the appellant. He noted that he had “serious concerns” about what the implications of this were for Ms. Curran. [ 11 ] Ms. Curran apologized for her absence saying that when she got the call from the court “on the date that I was originally supposed to be there, I’ve always showed up for court, I’ve never missed a date, the two dates I missed were in the last month.

I honestly when I did write it in my calendar, thought it was the following Wednesday, I even booked it off work”. [ 12 ] Counsel for Mr. Hynes argued that the order made on September 16, 2009 was valid and should be filed accordingly. [ 13 ] The applications judge indicated that he would sign off on the order as he was “in a position to do nothing else here now because I made the order as a result of a hearing”. [ 14 ] He then noted that “the only thing you can do if you don’t agree with them, is to appeal them, but that appeal can’t be to me, it has to be to the Court of Appeal”. [ 15 ] Ms.

Curran wanted to present evidence after hearing the statements from the applications judge. He noted that he could not deal with what she was telling him. He stated, “My role in this is finished”. [ 16 ] Ms. Curran asks this Court if the applications judge’s decision to proceed in the absence of Ms. Curran was an appropriate exercise of the court’s discretion. [ 17 ] The matters before the applications judge on September 16, 2009 were heard and determined in the absence of Ms. Curran. They involved significant issues of fact and law. Ms. Curran wishes to be heard. She says she intended to attend the hearing.

There is no basis to conclude that she did not wish to attend. Prior to September 14, 2009, she participated as a self-represented party in relation to three hearings arising out of the Originating Application. [ 18 ] The applications judge erred in proceeding to hear and adjudicate on the Originating Application in the absence of Ms. Curran without proof that Ms. Curran had sufficient notice of the adjourned hearing date, and in concluding that his role in the proceeding was effectively functus officio and that Ms. Curran’s only recourse was an appeal to this Court.

Rule 29.11(2) of the Rules of the Supreme Court, 1986 , provided recourse to the applications judge to set aside or vary his orders. [ 19 ] As well, this Court has concluded that the applications judge’s adjudication of the serious issues before him without hearing from Ms. Curran was unfair, and the failure of this Court to intervene would in the circumstances of this case be manifestly unjust. (See Walsh v. Johnson , 2010 NLCA 6 , at para. 30 .) [ 20 ] Accordingly, the Court allowed the appeal on the basis that the applications judge erred in proceeding to hear the Originating Application as he did.

The Court set aside the two orders of the applications judge filed October 22, 2009 and remitted the Originating Application to the Supreme Court of Newfoundland and Labrador, Trial Division with leave granted to Mr. Hynes to apply to have his Originating Application reheard. [ 21 ] There is no order as to costs. ________________________ C.W. White, J.A.