Gabriel v Grech

EVIDENCE

1. The second defendant relied upon two affidavits of its solicitor, Mr Christopher Clancy, in support of the amended motion, sworn 1 February and 13 March 2018, respectively.
2. The plaintiff relied upon the affidavit of Mr Simon Chen, solicitor for the plaintiff, sworn 19 March 2018.
3. Neither deponent was required for cross-examination.

FACTUAL BACKGROUND

1. Prior to turning to the motion, it is necessary to set out the factual background to the second defendant's application.
2. In her first judgment, Atkinson LCM considered that there were a number of issues in dispute, the first of which was whether the plaintiff was the owner of the BMW. She found that the plaintiff was not the owner of the BMW at the time of the collision and, in the result, he was not entitled to recover damages arising out of the collision: Gabriel v Grech (Unreported, New South Wales Local Court (Downing Centre), 10 March 2017) ("Gabriel No 1") at [43].
3. Atkinson LCM, nonetheless, resolved some other issues that were raised in the proceedings. They may be summarised as follows: 1. Her Honour did not accept the contentions advanced by the second defendant that the accident was "staged", rather her Honour held that despite "suspicious" circumstances, she was unable to reach the necessary level of satisfaction to make a finding of that kind (see Gabriel No 1 at [60]). 2. Her Honour found that the first defendant was negligent and, as to the second defendant, that if it were found liable, she would assess the cost of repairs to be $15,900 (see at [88]). 3. As to the cross-claim, Atkinson LCM found the following (Gabriel No 1 at [68]-[72]): [68] The rental agreement between DMC and Paul Grech contained an indemnity at clause 8. The indemnity would cover the hirer against legal liability to pay compensation for accidental loss or damage arising out of an accident with the higher was at fault. [69] The indemnity included an exclusion to the effect that DMC would not pay for any claim for accidental loss, damage or legal liability arising out of the higher not complying with the terms of the higher agreement. [70] Given my earlier findings as to fraud and negligence, I find that the indemnity will operate and the exclusion will not operate to relieve DMC from liability in relation to Paul Grech. [71] DMC would have been liable to indemnify the owner of the BMW but I have previously found on the balance of probabilities that this person is Mark Gabriel and not Joseph Gabriel. [72] The proceedings have been bought by the wrong person therefore there is no need for DMC to indemnify Paul Grech in respect of the claim made by Joseph Gabriel.
4. Under the heading "Conclusion" in Gabriel No 1, her Honour held (at [95]-[98]): [95] For the above reasons, I dismiss the statement of claim. [96] In relation to the cross-claim, I find that Drive My Car would have been liable to indemnify Paul Grech in relation to the collision had Joseph Gabriel recovered damages against him. [97] I propose dismissing the statement of cross-claim unless the parties apply within 14 days to have the proceedings relisted for an argument as to the appropriate order to be made. [98] The parties have liberty to apply within 14 days to relist the proceedings for a costs argument and for an argument as to the appropriate order to be make in relation to the statement of cross-claim.
5. Attached to Mr Chen's affidavit were extracts from the NSW Online Registry for Courts and Tribunals ("the Online Registry record"): see Sch 1 of the Electronic Transactions Act 2000 (NSW) and Pt 3 of the UCPR, and in particular r 3.6. An entry for the proceedings dated 8 March 2017 stated the claim and cross-claim were listed for "mention" on 9 March 2017 and that "Decision [is] to be made on 9 March". There was then an entry on 9 March 2017 in relation to the claim as follows: "Order Final judgment/order / Dismissals > made on 09 March 17" under which appeared the words: "Decision emailed to parties".
6. A separate entry made on 9 March 2017 concerned the cross-claim. This record, in that respect, stated: "Order Case management / Case management orders and directions". Again, the words "Decision emailed to parties" appeared.
7. It is likely the date of the 9 March 2017 is erroneous. Even though the entry for 8 March 2017 mentioned a decision would be "made" on 9 March 2017, the entry on 16 February 2017 records that the claim will be returnable for mention and "decision" on 10 March 2017. The cover sheet in Gabriel No 1 records the date of the decision as being 10 March 2017. It was common ground between the parties that the judgment was delivered on that date.
8. A "Judgment/Order" was issued by the Registrar, Ms Sue King, on 16 March 2018 at 10.22 am ("the March 2018 Judgment/Order"). Next to the entry "signature" appears in a typed form, the words "Sue King". The handwritten signature of Ms King does not appear on the document. The instrument is, nonetheless, to be treated as signed in consequence of r 3.6(3) of the UCPR because Ms King's name appears in the manner described above. The March 2018 Judgment/Order also bore the seal of the Local Court.
9. In the March 2018 Judgment/Order, under the heading "Judgment/Order", the following, inter alia, appeared: DATE OF JUDGMENT/ORDER Date made or given 9 March 2017 Date entered 17 March 2017

TERMS OF JUDGMENT/ORDER Decision emailed to parties Decision emailed to parties

1. The Online Registry record for 5 April 2017 stated that the cross-claim was part heard and listed for a special fixture on 24 May 2017 (for 1 hour). There is no entry with respect to the claim as such.. The record states that orders were made in accordance with "paragraphs 1-3 of Consent Orders / Terms of Settlement". A hand written document was attached which was signed by the solicitors for the parties. The document was in the following terms: 1. Cross-defendant to file and serve outline of orders sought by 12 April 2017. 2. Cross-defendant to file and serve list of authorities by 19 April 2017. 3. Plaintiff and defendant to file and serve list of authorities and outline of proposed orders by 26 April 2017. Listed for argument on final orders and costs on 24 May 2017 at 9.30am. (The document shall hereinafter be referred to as "the Consent Orders").
2. The second defendant contended the Consent Orders related to the cross-claim, and in particular, related to [97] of Gabriel No 1 where Atkinson LCM indicated that she proposed to dismiss the cross-claim, unless the parties sought to have the proceedings returned for argument as to the appropriate order to be made. That submission is certainly correct, with respect to paras 1 and 2 of the Consent Orders, as the references are confined to "cross-defendant". That contention may be doubted, however, with respect to order 3 as that order was expressed as being referable to the plaintiff and the defendant and stands in contradistinction to the reference to the "cross-defendant" in orders 1 and 2. Similarly, the final paragraph would not seem to be solely connected to the cross-claim given that it refers to "final orders" as well as costs (which, it may be deduced, was a reference to the issue of costs, with respect to the claim and cross-claim).
3. According to Mr Clancy, Atkinson LCM heard submissions on costs on 24 May 2017 (the plaintiff foreshadowing that he would seek to join Mark Gabriel). The proceedings were adjourned to 14 July 2017 for further submissions on costs and any motion filed as to joinder (which application was not made). (I interpose to note, at this juncture, that the Online Registry record has no corresponding entry for 24 May 2017. Notwithstanding this absence, I accept the submission of the parties that the matter was before the Local Court on that date).
4. The listing for the continuation of the proceedings, as to both the claim and cross-claim, appeared on the Online Registry record on 14 July 2017. The proceedings were listed on that occasion for a special fixture on 11 August 2017 but the time allocated was 5 minutes suggesting that the only business of the Court at that date was the delivery of a judgment. The second defendant submitted that this entry makes clear the proceedings on 11 August 2017, so far as they concerned the claim, only involved a "costs decision" but reference to the same only appears under the entry for the cross-claim.
5. Atkinson LCM delivered her second judgment on 11 August 2017: Gabriel v Grech (Unreported, New South Wales Local Court (Downing Centre), 11 August 2017) ("Gabriel No 2"). The cover sheet listed the hearing dates as 24 May and 14 July 2017.
6. At the opening of that judgment, her Honour stated (at [1]): [1] I have previously: • dismissed Joseph Gabriel's claim against Paul Grech • Found that Drive My Car would have been liable to indemnify Paul Grech in relation to the collision had Joseph Gabriel recovered damages against him.
7. As to [97] of Gabriel No 1, her Honour found (Gabriel No 2 at [2]) as follows: [2] The cross claimant has submitted that as a result of my finding in relation to the cross-claim, I should order that the cross claim is dismissed. I agree with this submission and will make this order.
8. After describing findings made in Gabriel No 1, her Honour then stated at [5]: I delivered a written judgment and the proceedings were listed for a costs argument. Mr Gabriel engaged new counsel for the costs hearing.
9. Her Honour commenced the consideration of costs under the following heading "Costs Orders Sought and Basis for Seeking Orders".
10. Her Honour made the following decision as to costs in Gabriel No 2 at [28]-[33]: [28] It is difficult for courts to mathematically calculate what percentage of costs should be attributed to each issue in dispute. [29] Doing the best I can, I would assess that approximately 50% of the case related to issues on which DMC has been successful and on which Joseph Gabriel was unsuccessful. [30] In my view, the way in which both Joseph Gabriel and Paul Grech conducted this case meant that DMC had no option but to undertake extensive investigations and take the major running in the case. [31] In my view, these are circumstances in which it is appropriate to depart from the ordinary cost rule and to exercise the power given in s.98 to make an order that Joseph Gabriel pay a percentage of DMC's costs. [32] Given my finding that approximately 50% of the case related to issues on which DMC has been successful, I order that Joseph Gabriel pay 50% of DMC's costs. [33] DMC had sought a costs order on the indemnity basis. Although I had serious concerns about evidence given in Joseph Gabriel's case, I am not satisfied that this case falls within the categories of cases which warrant the making of an indemnity costs order (see paragraph 42.5.40 of NSW Civil Procedure Handbook 2017). In my view, the appropriate order is that DMC's costs be payable on the ordinary basis (see UCPR 42.2).
11. In the final paragraph of the judgment in Gabriel No 2 (which bore no heading), her Honour stated (at [34]): [34] For the above reasons, I: • Dismiss the claim • Dismiss the cross-claim • Order that Joseph Gabriel pay Paul Grech's costs on the ordinary basis as agreed or assessed • Order that Joseph Gabriel to pay 50% of DMC's costs on the ordinary basis as agreed or assessed.
12. The Online Registry record for 11 August 2017 bore the same entry for the claim and cross-claim: "Order Final Judgment / Order / Dismissal > made on 11 August for [the proceedings]". Underneath that entry, the following words appear: "See Attached". Next appearing below that entry is an attachment which is Gabriel No 2.
13. On 16 March 2018, a further "Judgment/Order" was issued by Ms King at 10.25 am ("the further March 2018 Judgment/Order"), under her electronic signature and the seal of the Local Court (in the manner described above at [21]).
14. In the further March 2018 Judgment/Order, under the heading "Judgment/Order" the following, inter alia, appeared: DATE OF JUDGMENT/ORDER Date made or given 11 August 2017 Date entered 23 August 2017

1. There was no dispute that the attachment under the "Terms of Judgment/Order" was Gabriel No 2.

THE APPEAL

1. By the amended summons, the plaintiff applied and sought leave to appeal under ss 39(1), 40(1) and 40(2) of the Local Court Act 2007 (NSW) "from the whole of the decision of Magistrate Atkinson of 11 August 2017 including the order of that date for the dismissal of the claim (the reasons for which were delivered in a separate judgment on 10 March 2017)".
2. Under the heading, "Extension of Time", in the amended summons, the plaintiff pleaded that the material date for the filing of the appeal was the date at which Gabriel No 2 was published, namely, 11 August 2017, and hence the appeal was filed in time.
3. The primary relief sought by the plaintiff was that Mark Gabriel be substituted or added as a plaintiff in the proceedings before the Local Court and as a party to the proceedings on appeal and that consequential orders be made including that judgment be entered in favour of Mark Gabriel against "the defendant" in the sum of $15,900 plus interests and costs. Orders were also sought with respect to the cross-claim.
4. The alternative relief sought was that leave be given to appeal from the whole of the decision below; the appeal be allowed and the orders of Atkinson LCM set aside and in lieu thereof, orders would be made of a similar character to that sought in the primary claim.
5. It is unnecessary to deal fully with the grounds of appeal. It is sufficient to note that it was pleaded that Atkinson LCM erred as a matter of law in determining that the ownership of the BMW was a fact in issue between the plaintiff and the "defendant", erred as a matter of law and/or a matter of mixed fact and law in deciding that the plaintiff was not the owner of the BMW and lacked standing to sue for damages with respect to the collision with the BMW.
6. Under the same heading, the plaintiff pleaded: 3. For the sake of abundant caution, however, should the "material date" be construed to be 3 March 2017, the plaintiff applies under rules 50.3(1)(c) and 50.12(1)(c) for an extension of time to appeal and to seek leave to appeal. 4. The earlier judgment of 3 March 2017, does not appear to contain formal orders and appears to be drafted in a manner suggesting that formal orders will be made or provided subsequently. 5. The later judgment of 11 August 2017, appears to contain formal orders (in par. [34]). Although the earlier judgment contains, within the body of the discursive part of the judgment, the words "I dismiss the statement of claim", the later judgment of 11 August 2017, contains the formal order dismissing the claim, confirming the understanding that the earlier judgment did not contain formal orders and the claim was not ordered to be dismissed until 11 August 2017. 6. Appeals are brought from orders, not from the reasons of the court below: see e.g. Practice Note No SC CA 1 at [30]. 7. If the above view is incorrect, then an extension of time is sought.

THE ISSUES

1. The appeal is one falling under Div 1 of Pt 50 of the UCPR as the appeal does not fall within the class of appeal identified in r 50.1(1)(a), (b) or (c).
2. Rule 50.3 of the UCPR provided for the time for appeal in the following terms: 50.3 Time for appeal (1) A summons commencing an appeal must be filed: (a) within 28 days after the material date, or (b) if the appeal relates to the decision of a judicial officer, within such further time as the judicial officer may allow so long as the application for such further time is filed within 28 days after the material date, or (c) within such further time as the higher court may allow. (2) An application for an extension of time under subrule (1) (c) must be included in the summons commencing the appeal. Note: The provisions of this Part, like the other provisions of these rules, are subject to any Act that makes provision to the contrary. For example, section 24 of the Companion Animals Act 1998 provides that an appeal to the District Court against an order disqualifying a person from owning a dog may only be made within 28 days after the date on which the order is made.
3. The amended summons pleaded the appeal was brought within time pursuant to r 50.3(1)(a) but alternatively sought in the exercise of the discretion of the Court an extension of time under rr 50.3(1)(c) and 50.12(1)(c).
4. For the purposes of determining the motion, counsel for the plaintiff eschewed any intention to put submissions as to any discretionary considerations as would arise in the context of considering the alternative application to extend time. However, he later made clear that he relied upon the application to extend time per se as one answer to the motion seeking to declare the appeal incompetent.
5. The plaintiff contended the Court "ought not make any declaration as to whether the appeal was out of time" and, ultimately, identified the issues for consideration as being fourfold, as set out below: 1. whether the appeal may be incompetent, where there is a provision for an appeal; 2. whether the question of competency may be determined where the evidentiary foundation for the determination of that question is absent - in this case, evidence that sealed orders had been entered; 3. whether, if the appeal was out of time, it may be declared incompetent if there remains outstanding an application to extend time; and 4. whether incompetency of the appeal may be declared where there is a reasonable, if not strong, argument the appeal is within time because the material date governing the time for the filing of the appeal was when the orders were entered and perfected on 11 August 2017.
6. The second defendant contended the Court should determine the issue of competency by determining whether the appeal was out of time and, further, raised the issue as to whether the plaintiff should be permitted to rely upon the application to extend time to defeat the incompetency application in circumstances where the plaintiff had not prepared a proper application in advance of the hearing of the motion regarding competency and had conceded it would not contend for the exercise of the Court's discretion to extend time.
7. The question of leave to appeal in the alternative relief sought in the amended summons was not listed with the motion and neither party sought to separately agitate that issue.

The Second Defendant

1. In summary, the second defendant made the following primary submissions in support of the motion based upon the resolution of the issue as to whether the appeal was brought in time: 1. By r 50.3(1)(b) of the UCPR, a summons commencing an appeal must be filed within 28 days after "the material date". 2. As this is an appeal from the Local Court, the definition of the "material date" is "the date on which the decision is pronounced or given" (see r 50.2(1) and the definition of "decision" therein). 3. The material date for the purposes of the appeal is 10 March 2017. That is the date of the decision of Gabriel No 1. In that decision, Atkinson LCM not only gave reasons for decision but "the decision was pronounced or given and orders were made". Whilst the Court may stand matters over for the making of formal orders that is not what occurred in respect to Gabriel No 1, except in relation to the issue of costs. Reference was made, in this respect, to [95] of Gabriel No 1. The distinction drawn in [97] of that judgment, it was contended, underscored that an actual dismissal occurred by virtue of the expression, "I dismiss the statement of claim" in [95] of the judgment. This is because the Atkinson LCM did not make orders in respect to the cross-claim in contrast to the claim. 4. Reliance was also placed upon the material in these proceedings (namely, the March 2018 Judgment/Order), which showed that the judgment in Gabriel No 1 was entered on 17 March 2017, including the Online Registry record of that same date, namely "Order Final Judgment / Order / Dismissal made on 9 March 2017". 5. Reliance was placed upon the decision in Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 ("Asuzu"). In particular, the test of whether an appeal is out of time is whether the appeal was brought later than 28 days from the material date. If it is not brought within that time the appeal is incompetent. The form of the appeal adopted by the plaintiff cannot alter that requirement. 6. The judgment in Gabriel No 2, it was contended, confirmed the appeal was out of time. Reliance, in this respect, was placed upon the remarks of Atkinson LCM at the commencement of the judgment; where her Honour stated that she had previously dismissed the claim (at [1]). Thus, it was submitted, that [34] of Gabriel No 2: "added nothing [the magistrate] had already done… it was already dismissed, and cannot have been dismissed again". The reference to dismissing the claim in [34] was a mistake. 7. As the summons bringing the appeal was lodged on 8 September 2017, the appeal was out of time and substantially so.
2. In reply, the second defendant advanced, in summary, the following additional submissions: 1. As to the plaintiff's reliance upon Palermo Seafood Pty Ltd v Lunapas [2015] NSWCA 175 ("Palermo"), the present matter may be distinguished, it was contended, as there can be no realistic prospect of there being "scope for legitimate argument" or "additional evidentiary material" of what was the material date in circumstances where the parties have agreed to put on their evidentiary material for the purposes of the disposition of the motion. 2. As to the issue of an extension of time, the decision in Woollahra Municipal Council v Sved (Unreported, New South Wales Court of Appeal, 24 July 1998) ("Sved"), which was referred to in Asuzu (at [40]), was cited as relevant. It should have been clear to the plaintiff and his legal advisors, at least from the service of submissions on the motion, that there was an issue as to whether or not the notice of appeal had been filed in time and no attempt was made to prepare a proper application for leave to extend time in the event that such an application might be necessary. Any such application should be made in advance of the hearing of the challenge to competence and it was not: Asuzu at [41] (see Sved). Further, the plaintiff resiled from reliance upon the application to extend time at the hearing of the motion. 3. As to the plaintiff's reliance on the decision in Mills v Futhem [2011] NSWCA 252 ("Mills"), it was submitted that decision is distinguishable for two reasons. First, this case is not about when entry of judgment occurred but when the judgment was "pronounced or given". (The plaintiff's own solicitor deposed that it was entered on 17 March 2017). Secondly, there was ample evidence that the judgment was pronounced or given and entered (if entry was relevant) in March 2017. 4. The arguments that the plaintiff advanced for judgment not being pronounced or given in March applied equally to the judgment given in August 2017. On 8 March 2017 the matter was listed the following day for the making of the decision. UCPR r 36.3 provides that where the judicial officer reserved his or her judgment or decision he or she may give the judgment or decision either in open court or in the absence of the public and forward it to the Registrar at the venue for the proceedings. Subrule (3) provides that a judgment or decision given under subrule (1)(a), or read under subrule (2)(c), "takes effect on the day on which it is so given or read and is as valid as if given by the judicial officer at the hearing of the proceedings to which the judgment or decision relates". As the matter was "listed for mention" on 9 March for "decision to be made" and as a recording was "dismissal" in respect of the statement of claim, there can be no legitimate argument that the statement of claim was not dismissed on that date. 5. As to March 2018 Judgment/Order, the document records that a "Judgment/Order" was entered on 17 March 2017. Insofar as the entry is relevant, which it is not for the purpose of the material date, reference needs to be had to the attachment of the judgment/order, which incorporated the judgment and orders of 10 March 2017. The judgment in Mills is distinguishable because in that case the terms of settlement were not incorporated, unlike here where the incorporated PDF recorded the judgment and orders and, secondly, terms of settlement cannot be a judgment given or pronounced, unlike a judgment given by a judicial officer. 6. The Online Registry entry for 14 July 2017 does not provide that the matter was listed on 11 August 2017 to deal with all issues, as the matter refers only to a "costs decision". 7. The Court should not accept that the entry at [95] of Gabriel No 1 was merely a discursive part of the judgment. Insofar as [98] of that judgment refers to liberty to apply, it only concerned costs. 8. Finally, in Mills itself, relied upon by the plaintiff, the orders were stated at [49] of the judgment of Allsop P within what counsel for the plaintiff would call the "discursive" part of the judgment and set out the orders which his Honour "would make". The other justices simply agreed with him and none of them made formal "orders". Nonetheless, the judgment must have been pronounced or given" on 30 August 2011.

The First Defendant

1. The first defendant did not file any submissions with respect to the motion.
2. On 19 March 2018, counsel for the first defendant confirmed the first defendant supported the motion, as mentioned earlier, and had nothing to add to the submissions filed by the second defendant.

The Plaintiff

1. In summary, the submissions of the plaintiff were as follows: 1. Any application under r 50.16A is misconceived. An appeal is only "incompetent" if there is no provision for an appeal in the circumstances or if there is a procedural bar to the appeal which the appellant has not sought to overcome (see, for example, McGinn v Cranbrook School [2016] NSWCA 226 in relation to the equivalent provision in r 51.41 of the UCPR). In the present case, there is provision for an appeal and, in the event that the summons is found to have been filed out of time, the plaintiff applies expressly for an extension of time in accordance with r 50.3(1)(c) and (2) of the UCPR. 2. The second defendant was required to file and serve any motion under r 50.16A within 14 days after service of the notice of appeal and the time in which to file and serve a motion under r 50.16A can only be extended by application. The second defendant failed to do both of those things. 3. There is no proper basis to determine whether the appeal is out of time as there was no evidence that formal orders were made following the judgments in Gabriel No 1 and Gabriel No 2. 4. In the alternative, there is a reasonably arguable case the appeal is within time predicated on the material date being 11 August 2017. If "formal operative orders" were made dismissing the claim below they were orders made in consequence of Gabriel No 2: Mills at [27]. That is the material date for the purposes of r 50.3 of the UCPR as the material date is the date upon which formal orders were made and pronounced. 5. The judgment in Gabriel No 1 consists only of reasons for judgment. 6. Appeals are brought against orders not against reasons for judgment: see Supreme Court of New South Wales, Practice Note No SC CA 1 - Court of Appeal (27 March 2009) at [30] (it should be noted, the provision relied upon is no longer in place, the practice note of 27 March 2009 has been replaced by practice issued 12 December 2017, which was operative from 1 January 2018). Until a Court has perfected its final orders it retains a power to reverse its decision: Altus Group (UK) Limited v Baker Tilly [2015] EWHC 12 (Ch). 7. The claim was not finally disposed of on 10 March 2017. Atkinson LCM granted liberty to apply in relation to the claim not merely the cross-claim. The claim was subsequently listed with the cross-claim, both being part heard. There could not be final orders made as the cross-claim had not been resolved. 8. The amended summons appeals only against the "formal operative orders" of 11 August 2017. 9. The Local Court continued to exercise powers with respect to the claim after 10 March 2017. 10. The application for extension of time under r 50.3(1)(c) does not involve any question of leave either under the Local Court Act or under Pt 50 of the UCPR. The fact that an application for extension of time must be included not only in any summons seeking leave to appeal (r 50.12(2)) but also in any summons commencing an appeal as of right (r 50.3(2)) confirms that, in the context of Pt 50 appeal, the question of extension of time is separate to the question of leave to appeal under r 50.12 of the UCPR. The application to extend time is relied upon by the applicant and, even if the appeal is out of time, its existence must defeat the contention that the appeal is incompetent until that application is determined.

Incompetency in light of any application for extension of time

1. It was submitted that the decisions in Sved and Asuzu supported the proposition that any application for leave for extension of time should have been made in advance of the hearing of the challenge to competency. The second defendant contended that no attempts had been made to "prepare a proper application for leave to extend time in the event that extension might be necessary". In any event, it was submitted that the plaintiff could not have recourse to the extant application to extend time in the amended summons as such a course was foreclosed by the concessions made by counsel for the plaintiff during the course of the hearing of the motion.
2. In Sved, the Court of Appeal dealt with the question of leave to appeal as opposed to leave to extend the time for filing a notice of appeal. The appellant in that case filed a notice to appeal which specified two challenges to the trial judge's orders, namely, a dispute about $28,033 and a costs order ("the first two challenges"). After the filing of that notice of appeal, the respondent objected to the competency of that appeal on the basis that the amount put in issue was less than $100,000 (the respondent sought to invoke s 101 of the Supreme Court Act 1970 (NSW), which provided that a grant of leave was required to appeal an amount less than $100,000 to the Court of Appeal).
3. In response to the respondent's objection to competency, the appellant initially responded with another notice of appeal, which added a third challenge to the appeal ("the third challenge").
4. Mason P (with whom Shellar JA agreed) struck out the third challenge on the basis of abuse of process; given the appellant sought to advance an argument it had been earlier disclaimed at trial. His Honour held that he would not permit a party to advance an appeal on a point it had expressly abandoned below.
5. His Honour found that the striking out of the third challenge had the effect of rendering the appeal incompetent; notwithstanding that counsel for the appellant had submitted that it was sufficient that the nature of the appeal was competent on its face. Otherwise, his Honour held, "an abuse of process would become the source of juridical right" (Sved at 16).
6. The appellant then sought the opportunity to "file papers" enabling it to argue the question of leave to appeal in regard to the first two challenges in the appeal. No application for leave had been earlier filed (noting the Registrar directed that, should the appellant seek leave to appeal, with respect to competency, an application was to be filed by a certain date, prior to the hearing date of the motion). Mason P struck out the notice of appeal upon the following basis (Sved at 17): A party faced with a formal objection to the competency of its appeal should, if it wishes to fall back on an application for leave to appeal, ensure that such an application is duly made prior to any contested competency application.
7. The parties also relied upon Asuzu. In that case, Ward JA (as her Honour was then) considered a notice of motion in which there was an application for, inter alia, summary dismissal of a notice of appeal on the basis that the appeal was incompetent for not being filed in time.
8. The circumstances of the case before her Honour were as follows: 1. her Honour found that it should have been clear to the appellant from the service of the respondent's submissions that there was an issue as to whether the notice of appeal was filed in time (see Asuzu at [39]). 2. during the hearing of the motion, counsel for the appellant accepted that the appellant had not made an application for leave to extend the time for the filing and service of the notice of appeal (see Asuzu at [38]); 3. counsel then, as her Honour understood, made an oral application for leave to extend time (see Asuzu at [38]); and 4. her Honour found that no attempts were made by the appellant to prepare a "proper application" for leave to extend time, in the event that such an extension was necessary (see Asuzu at [39]).
9. Ward JA then considered Sved. Her Honour held: [40] In Woollahra Municipal Council v Sved (New South Wales Court of Appeal, unreported, 24 July 1998), Mason P and Sheller JA were of the view that if an appellant (faced with an objection to the competency of the appeal) intended to seek leave to appeal then such an application for leave must be made before the hearing of the competency application. In Director-General, Family and Community Services Re Felicity [2012] NSWCA 272, an oral application for leave to appeal made during the hearing of the objection to the competency of the appeal was rejected. [41] Those authorities suggest that an oral application for leave to extend the time for filing of the Notice of Appeal should not be entertained in the present case (since the application was not made in advance of the hearing of the challenge to competency). It is not necessary to decide the question on this point since even if (contrary to the practice applied in Re Felicity) the application should now be entertained, my view is that leave should not be granted in the circumstances of the present application for the following reasons.
10. As would be evident from the above extract, whilst her Honour had regard to the conclusion in Sved, she did not ultimately determine to dismiss the proceedings on that basis. Rather, the determination ultimately hinged upon whether or not the appellant had established a proper basis to grant leave to extend time.
11. Her Honour concluded (Asuzu at [54]): [54] On this first ground [in issue in the proceedings], therefore, I find that the appeal is incompetent as the Notice of Appeal was filed out of time. I do not consider that leave should be granted to extend the time for the filing of the Notice of Appeal. It should be summarily dismissed.
12. Whilst Sved concerned the question of leave to appeal and Asuzu was ultimately determined upon the exercise of a discretion to refuse the application to extend time, that does not deny the fact that the broad principles in Sved may, nonetheless, be applicable to the present motion if the facts or circumstances considered in those authorities aligned with the present case. However, they do not for the following reasons: 1. It was clear that in both Sved and Asuzu, the applications for leave to appeal or leave to extend time were made either after the hearing or during the course of the hearing on competency. In particular, in Sved, the application for leave was retrofitted based upon the objection based on competency. 2. In this matter, the application for leave to extend time was made in the amended summons filed on 3 October 2017. That application, therefore, was formally made two months prior to the second defendant's challenge of competency through the motion filed on 5 December 2017. The earlier form of the motion incorrectly sought that the amended summons "be struck out as incompetent for having been filed out of time". As noted earlier, leave was granted on the date of the hearing of the motion to amend the motion to make it consistent with r 50.16A (the amended form of the motion is extracted at [8] above). 3. It cannot be contended, as the second defendant sought to do, that no "proper application" for leave to extend time was made by the plaintiff prior to the second defendant's incompetency application. Nor was the application to extend time employed defensively only after the issue of competency was raised by the second defendant. 4. Unlike Asuzu, the hearing of the motion in these proceedings was confined to exclude the consideration of discretionary factors.
13. That brings attention to the second defendant's contention that the plaintiff was barred from reliance upon his extension of time application due to the conduct of its case on the motion.
14. I accept that the case advanced on behalf of the plaintiff was, albeit in the early stages of its development, somewhat opaque. However, by the close of the plaintiff's oral submissions, it was clear that the contention of the plaintiff was that it was unnecessary for the Court to deal with the discretionary issues involved in the application to extend time in circumstances where the only issue before the Court was the competency of the appeal predicated upon the appeal being out of time. In oral submissions, counsel for the plaintiff confirmed that the plaintiff relied upon the existence of the application to extend time as a factor, in and of itself, to defeat the competency argument, even if the appeal was out of time. That position corresponded with the form of the extension of time application in the amended summons, which pleaded the appeal was in time or, alternatively, an extension of time should be granted by the Court.
15. In these circumstances, I consider the application to dismiss the appeal for incompetency must fail.
16. The application to extend time is extant and nothing in the hearing of the motion resulted in the abandonment of the same.
17. Even if the appeal is incompetent, by virtue of the appeal not being filed within time for the purposes of r 50.3(1)(a) (contrary to the conclusion reached below), any grant of further time to appeal pursuant to r 50.3(1)(c) would overcome that irregularity and make for a valid appeal.

The Material Time

1. Rule 50.3 provides that the summons commencing an appeal must be filed within 28 days after "the material date" or, inter alia, within such further time as this Court may allow.
2. Relevantly, "material date" is defined in r 50.2(1) as "the date on which the decision is pronounced or given". "Decision" is defined in r 50.2(1), non-exhaustively, as "a judgment, order, opinion, direction or determination".
3. The appeal was commenced by the filing of the summons on 8 September 2017. If the material date is the date of the judgment in Gabriel No 1, the appeal is significantly out of time and would require the appeal to be pursued, with the grant of an extension if time under r 50.3(1)(c). In the absence of the grant of time, the appeal would be incompetent: Azusu at [54]. If the material date is the date of the delivery of Gabriel No 2, namely, 11 August 2017, the appeal is within time.
4. The above determination (at [72]), makes the determination of this issue strictly unnecessary. However, the parties directed significant attention to the issue and, hence, I will make observations as to its resolution.
5. First, I agree with the second defendant that, subject to the above ruling, this matter may be distinguished from Palermo. There is little prospect that, with respect to the issue of the "material date", there remains scope for further "legitimate argument" or "additional evidentiary material" (see Palermo at [29] and [30]).
6. Secondly, I agree with the second defendant that the entry date for orders pursuant to r 36.11(2) or (2A) is not determinative of the material date. The definition of the material date, set out above, is not so confined and any such limitation is inconsistent with authority: see Blackmore at [9] and Russo at [16] and [23]-[24].
7. Thirdly, the date of entry is not an irrelevant consideration in determining the "material date" for the purpose of r 50.3 as it may assist in understanding when a decision is pronounced or given having regard to the definition of that expression in r 50.2. In the proceedings, Atkinson LCM did not direct the order be entered other than in accordance with r 36.11(2) (there were no orders under r 36.11(2) or directions under r 36.11(2A)). Accordingly, entry under r 36.11 may have only been effected by means of the Local Court's Computerised Court system: Mills at [27]. Whilst there was an entry on 9 March 2017 stating, "Order / Final judgment order / Dismissal made on 9 March" for the claim, the Online Registry record does not set out the orders or incorporate them by reference, given that the entry merely records "the decision was emailed to the parties": Mills at [27]. It might also be noted the record for that date for the cross-claim was "Case management, orders and directions" suggesting that issue remained unresolved at that time (even though there was an intimation in Gabriel No 1 that it may be dismissed). The March 2018 Judgment/Order does no more than replicate the corresponding Online Registry record for the claim and cannot certify the existence of an order when none was, in law, made: Mills at [38] and UCPR r 36.12 (it might also be noted that it wrongly records the date of decision at 9 March 2017).
8. The Online Registry record for 11 August 2017 differs in two material respects. It bears a similar heading or entry for the claim "Order Final judgment / order / Dismissal" but it attached Gabriel No 2, thereby, indirectly effecting entry by incorporation. Further, it shows that the cross-claim is resolved by dismissal, again, in terms of Gabriel No 2.
9. Fourthly, whilst Atkinson LCM expressed herself in Gabriel No 1 in a manner characteristic of the making of orders, namely, "I dismiss the statement of claim" and repeated that sentiment at the outset of Gabriel No 2, there are significant indications in Gabriel No 1 and Gabriel No 2 (and related records with respect to those judgments) that her Honour did not make formal orders until 11 August 2017. Her Honour expressly left open in Gabriel No 1 the resolution of the cross-claim (at [97]) and the determination of costs with respect to both the claim and the cross-claim (those issue were the subject of hearing in between the delivery of the respective judgments): see Blackmore at [9] (although the authority concerned an application for dismissal under r 51.41). It is true that a cross-claim might be pursued even if judgment has been entered in the originating process (see r 9.10(1)) but there was no order below that the cross-claim be separately tried (see r 9.8) and Atkinson LCM expressly contemplated the continuance of the hearing of the claim (at least as to costs) and the cross-claim after Gabriel No 1.
10. It will be recalled that on 5 April 2017, Atkinson LCM expressly reserved for argument, "final orders and costs" in May 2017. This is not a case like Russo, where a later resolution of the cross-claim by order was made under the slip rule such that that the material date was the date of reasons for decision when the Magistrate determined the defendant was entitled to damages (at [23] and [24]). It might also be noted that there was no material before the Court in Russo as to whether orders had been entered (see Russo at [16]).
11. Given there is an outstanding application for an extension of time, and the matter concerns the competency of the appeal, it is sufficient to state that there is a reasonable argument that the material date was 11 August 2017. However, I would observe that, for the reasons given above, and on the material before the Court, there is substance in the contention that that date was, in fact, the material date.

CONCLUSION

1. In the circumstances, I consider the motion should be dismissed and costs reserved.

ORDERS

1. The Court makes the following orders: 1. The amended motion is dismissed. 2. Costs are reserved.

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: 05 November 2018