The application for leave to appeal
20The summons seeking leave to appeal, draft notice of appeal and summary of argument contain largely identical material, which can be summarised as follows:
- The decision of Gzell J was made ex parte and in circumstances that amounted to a denial of natural justice, as his Honour allowed the respondents to amend their application and to file additional evidence. Neither the amended application nor the additional evidence was served on the applicants before the ex parte hearing.
- White J dealt with the applicants' motion to set aside the ex parte judgment of Gzell J when Mr Abraham was not prepared to have the notice of motion heard, as he had been ill. When later that day, the applicants requested White J to reinstate the motion, his Honour determined a number of factual issues against the applicants without giving them an opportunity to present their evidence properly or to be represented and in circumstances that amounted to a denial of natural justice.
- His Honour should have found that the applicants had an arguable case which should have been allowed to proceed to trial.
- There was no urgency or other pressing need that precluded the Court below from allowing the applicants to be heard. The applicants' failure to appear was explained, and could have been appropriately addressed by a costs order.
21Two matters should be noted at the outset. The first is that it is very difficult to understand the complaint that Mr Abraham did not have an adequate opportunity to put his case to White J. Mr Abraham filed his motion to set aside Gzell J's judgment on 18 February 2012, ten days before the application was heard. In the meantime, on 19 February 2012, he obtained a stay of the order made by Gzell J for the payment out of moneys that had been paid into court. Mr Abraham had the opportunity to prepare and present any affidavit or documentary evidence on which he relied. It is true that Mr Abraham was unrepresented, but that does not establish that he did not have an opportunity to put material in support of his case to White J.
22Secondly, Mr Abraham in his affidavit filed in support of his application for leave to appeal offered no explanation for the delay of over five months in filing his application for leave to appeal, other than that he was unaware of the time limit. A bare assertion that he did not know of the time limits hardly qualifies as an explanation for such a delay.
23When invited to make oral submissions to this Court, it was pointed out to Mr Abraham that he had offered no satisfactory explanation for the delay in filing the application for leave to appeal. He then tendered a report dated 19 June 2013 from a clinical psychologist. This report confirms that Mr Abraham has a bipolar condition and that his ability to perform certain tasks is impaired. However, the report does not suggest that Mr Abraham was incapable of filing an application for leave to appeal earlier than he did. While one can only have sympathy for Mr Abraham so far as his medical condition is concerned, it appears to be a long standing condition that did not prevent him taking action to stay the orders made by Gzell J.
24There is a strong argument that even if Mr Abraham were able to demonstrate that he has an arguable defence to Mr Ayoubi's claim, he should not be granted an extension of time in which to file the application for leave to appeal. I accept that he has a significant illness. But that illness does not explain his failure to appear in time on two separate occasions when his matter was before the court. It certainly does not provide an adequate explanation for the prolonged delay in filing the application currently before the Court.
25It must be remembered that the judgment against Mr Abraham is for a relatively small sum. The proceedings were commenced more than a year ago. In refusing to set aside Gzell J's decision, White J correctly took into account the "overriding purpose" of the CP Act and the rules, namely "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". Mr Abraham has had ample opportunities to put forward evidence in support of his defence, but has not done so in a timely fashion.
26Even so, if Mr Abraham demonstrated before White J that he had an arguable defence to the claim, there may be a basis for extending time for the filing of an application for leave to appeal and for permitting Mr Abraham to defend the proceedings. But Mr Abraham has not shown that White J erred in concluding that he (Mr Abraham) failed to establish that he had an arguable defence. In order for a defendant to succeed in an application to set aside a judgment obtained after an undefended hearing on the merits, it is ordinarily necessary for him or her to show, by affidavit or otherwise, that he or she has a good defence on the merits: Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 at 243; Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331, at [48]-[51]. Mr Abraham has not done so.
27In his oral submissions, Mr Abraham asserted that he had made contact with a solicitor who was prepared to represent him in the proceedings. However, there was no evidence to that effect and the solicitor has not filed a notice of appearance or given any indication to the Court that he is prepared to act on behalf of Mr Abraham. Once again, one can sympathise with Mr Abraham's difficulties in obtaining representation, but he has had more than sufficient time to arrange representation, if that was his wish.
28The application for an extension of time in which to file the application for leave to appeal should be refused.
29As Mr Ayoubi did not appear and was content for his mother to appear on his behalf, there should be no order for costs in relation to the applications for an extension of time and for leave to appeal.