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The Deputy Commissioner had obtained default judgment against Ahmad Dabboussi on 5 December 2022 for unpaid tax, the general interest charge and penalty tax [1]. Dabboussi brought a motion seeking to set that judgment aside. The central issue identified by the judge was whether the statement of claim had been served in accordance with the rules. The judgment says that substantial evidence had been exchanged on service [5].

This was a second application to set aside the judgment. A previous application had been dealt with by consent orders on 22 February 2024, including an order dismissing the then-pending application [2]. The judgment records that steps contemplated by the parties’ earlier agreement had been playing out, and that the present motion had not yet been brought on for hearing [3]–[4]. It describes the motion as filed on 19 August 2024 at [4], but the final order calls it the Notice of Motion of 9 August 2024 [9]. The judgment does not explain that difference.

The hearing could not proceed as planned because Mr Juchau, the process server relied on by the Deputy Commissioner as having effected service, contacted the registry that morning to say he was medically unfit to attend. He was at a medical centre awaiting treatment [6]–[7]. The parties accepted that account. Dabboussi’s counsel consented to an adjournment, and the judge identified Mr Juchau as a critical witness required for cross-examination [7].

The Court therefore adjourned the hearing. It gave the parties liberty to approach the Listing Manager for the earliest available date, taking account of Mr Juchau’s health, recommended listing as soon as practicable given the case’s long history, and reserved costs [9]. Those orders changed the hearing timetable. They did not decide whether service was valid or whether the default judgment should ultimately be set aside.

Why the court decided this way

The ruling turned on the practical fairness of hearing a contested service issue without the witness whose evidence was central to it. The judge had already identified service as “a critical issue” and noted that much evidence had been exchanged on it [5]. Mr Juchau was the process server relied on by the judgment creditor. The judge said he was “required for cross-examination” [7].

The decision also rested on an unchallenged explanation for the witness’s absence and the judgment debtor’s consent. Mr Juchau had reported that he was medically unfit and was awaiting treatment; the plaintiff’s solicitor confirmed those circumstances in court. The defendant’s counsel took no issue with that account and consented to postponement [6]–[7]. The reasons do not suggest that the Court resolved any dispute about the genuineness or significance of the medical issue.

Campbell J framed the decision as an exercise of discretion in the interests of justice. In the circumstances, the judge considered an adjournment “the only proper exercise” of that discretion [8]. The reasoning is narrow and tied to the hearing before the Court: the witness was described as critical, cross-examination was required, the witness was medically unavailable, and the parties agreed the hearing could not proceed without him.

The orders also balanced the need to accommodate the witness’s health with the matter’s history. The Court authorised the parties to seek the earliest available hearing date having regard to his health, and separately recommended listing as soon as practicable because of the case’s long history [9]. It did not set a fixed new date or impose a timetable in the terms reproduced in the judgment. Costs were reserved rather than decided [9].

Before and after state of the law

The judgment records a judicial observation about service and default judgment, but the Court did not decide the service question. At [5], Campbell J remarked that a judgment entered on originating process not duly served is “normally” set aside ex debito justitiae, notwithstanding the Supreme Court’s status as a superior court of record. The judge immediately qualified that observation: other factors may inform the exercise of the power in the particular circumstances.

That passage is part of the judgment, but it should not be treated as the determination of the motion. The hearing was adjourned before the evidence about service was tested through the process server’s cross-examination. The orders do not set aside the judgment, uphold it, or make a finding about how or whether service occurred [7]–[9]. The remark at [5] gives context to the importance of the service issue; it does not resolve the factual dispute or the eventual application.

The judgment itself describes no change in law before or after the ruling. It cites no statute, rule, or earlier case and does not purport to reformulate the law of service or default judgments. Its operative result is procedural: the listed hearing was postponed, relisting was facilitated, and costs were reserved [9]. Any broader account of the law’s development would require sources beyond this judgment.

For practitioners reading this decision, the safe distinction is between what the Court decided and what it observed. It decided that the hearing should be adjourned on the circumstances before it. It observed, in general terms, how a judgment entered without due service is normally treated, subject to possible relevant factors. It did not decide which factors applied to Dabboussi’s case or what the outcome of the service dispute should be.

Key passages with plain-English translation

At [5], the judge identifies the dispute: “service is clearly a critical issue and much evidence has been exchanged dealing with it.” In plain English, the motion depended substantially on whether the statement of claim had been served properly, and the parties had put evidence on that question before the hearing.

Also at [5], Campbell J says that a judgment entered on originating process not duly served is “normally” set aside ex debito justitiae, while adding that other factors may matter in the particular case. In plain English, the judge’s stated general position was that lack of due service would normally support setting aside the resulting judgment, but the circumstances can affect the exercise of the Court’s power. The qualification matters. The passage is not a finding that service was defective here.

At [7], the judge states: “Clearly Mr Juchau is a critical witness, and he is required for cross-examination.” In plain English, the Court considered that the process server’s evidence needed to be tested in person before the service issue could fairly be heard. That was especially important because his account was relied on to establish that service had been effected.

At [8], the judge explains that an adjournment was “the only proper exercise of my discretion in the interests of justice.” In plain English, given the witness’s medical unavailability, his importance to the hearing, and the parties’ position, the judge considered postponement the appropriate procedural ruling in those circumstances. This does not establish that an adjournment must follow whenever a witness is unavailable; the reasons are specific to this hearing.

Finally, the orders at [9] show what the Court did and did not decide. The hearing was adjourned, the parties could seek the earliest available hearing date having regard to Mr Juchau’s health, an early listing was recommended, and costs were reserved. No order determined the service dispute or set aside the default judgment.

What fact patterns trigger this precedent

The decision is most relevant as a procedural example where a hearing turns on disputed service, a process server is a material witness, and the witness cannot attend for a medically explained reason. It is particularly pertinent to the situation described in this judgment: the witness was required for cross-examination, the parties accepted that he was unavailable, and the party seeking to set aside judgment consented to postponement [6]–[8].

The judgment does not establish a comprehensive test for adjournments, nor does it say that a hearing must always be postponed when a process server is unavailable. Its reasoning depends on the stated circumstances and the judge’s assessment of the witness’s importance. The case may help explain why a court could regard proceeding without cross-examination of a critical service witness as inconsistent with the interests of justice, but the judgment does not set out how the Court would decide a contested adjournment application or a case involving a different reason for absence.

The decision is also relevant to distinguishing procedural management from substantive resolution. A case may have a long history and a substantial dispute ready for hearing, yet a court may still adjourn where a necessary witness cannot participate. Here, the Court acknowledged the history while directing attention to an early relisting date that also took account of the witness’s health [9]. The judgment supplies no further criteria for balancing delay against witness availability.

How later courts have treated it

The supplied judgment contains no discussion of later decisions and no citations to other judgments. It cannot, on its own, establish how later courts have treated it. No later treatment, such as application, distinction, approval, or rejection, can be reported from the text provided.

The judgment’s form and content also counsel care in describing its precedential reach. It is an ex tempore procedural ruling with a short explanation for an adjournment. It does not decide the service issue, determine the motion to set aside default judgment, or provide a detailed analysis of the general law concerning service. Any research claim about later treatment would need to be checked against later judgments and reliable legal research sources, which are not included here.

Still-open questions

The central unresolved question is whether the statement of claim was served in accordance with the applicable rules. The judgment says Dabboussi disputed service and that evidence had been exchanged, but it does not set out that evidence or make findings about it [5]. Because Mr Juchau was unavailable for cross-examination, the Court did not determine that issue at this hearing [7]–[9].

A related open question is how the Court would apply the general observation at [5] to the full circumstances of the case. Campbell J noted that judgments entered on originating process not duly served are normally set aside, while acknowledging that other factors may inform the exercise of the power. The judgment does not identify those factors in this case or decide whether any are present.

The eventual result of the second motion also remains open. The orders only adjourned the hearing and enabled the parties to seek a new date. The judgment does not state whether the motion was later heard, whether the default judgment remained in place, or how costs were ultimately dealt with.

Finally, the difference between the motion’s filing date at [4] and the date in the first order at [9] is unexplained. The judgment says the motion was filed on 19 August 2024, whereas the order refers to the Notice of Motion of 9 August 2024. This may be a drafting or description discrepancy, but the text does not resolve it.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.