Kuksal v Lumi Finance Pty Ltd

Appeal

1. By summons filed 9 April 2021 ("the summons"), Mr Kuksal seeks to appeal the Local Court decision in proceedings numbered 2019/358522 to dismiss his motion to set aside a default judgment entered against him on 13 March 2020. Mr Kuksal also seeks that the application to set aside the default judgment be reopened, and that Lumi cover his costs.

Grounds

1. The appeal grounds argued by Mr Kuksal are that: 1. he was denied procedural fairness and natural justice; 2. the Magistrate failed to follow the law with respect to the determination of proper service in the original matter leading to the default judgment; 3. the Magistrate failed to follow the law with respect to the determination of whether a NSW Local Court was the appropriate venue for the original matter leading to the default judgment.

Background

1. On 14 November 2019, in the Local Court Lumi commenced proceedings by statement of claim seeking judgment against Efektiv Pty Ltd ("Efektiv") in relation to non-payment under a loan agreement, and judgment against several defendants including Mr Kuksal, under a related guarantee agreement.
2. On 13 March 2020, default judgment was entered against Mr Kuksal, due to his failure to make any appearance or file any defence in the proceedings ("the default judgment"). The terms of the default judgment were that Mr Kuksal pay Lumi the sum of $65,099.71 inclusive of costs.
3. On 18 June 2020, Mr Kuksal filed a notice of motion seeking orders that, inter alia, the default judgment be set aside ("the motion").
4. After having been adjourned part-heard on 10 August 2020 and 2 November 2020, the motion was ultimately dismissed by Magistrate Atkinson in the Local Court on 10 March 2021 ("the Local Court decision"). On 10 March 2021, Mr Kuksal did not appear at the hearing. Mr Braithwaite appeared for the plaintiff/respondent. Mr Kuksal forwarded a medical certificate to the magistrate, and sought that the proceedings be adjourned. Mr Braithwaite had not seen the medical certificate.
5. The Local Court exercised its discretion to dismiss the motion pursuant to Part 6 of the Civil Procedure Act 2005 (NSW), in circumstances where Mr Kuksal had failed to comply with a direction to appear in person. The court in exercising their discretion, considered the material Mr Kuksal provided by email on 10 March 2021 explaining his reasons for non-appearance.
6. The transcript of the Local Court proceedings on 10 March 2021 relevantly reads at page 9 line 16, to page 10 line 2: "Given that Mr Kuksal has had numerous opportunities to agitate his case, he has sent a document this morning absent any affidavit, any indication of the preparations that he was making to come to Sydney, and there was an indication at the last mention that he was not intending to come. IN those circumstances it is appropriate to consider more fully the application to dismiss the proceedings. An aide memoire was handed up on behalf of the judgment creditor indicating he costs that have been incurred to date in relation to this notice of motion, and at this point in time they have incurred $45,884.08. I accept that this is not an assessed amount, but nevertheless, it is money that is being spent by the judgment creditor, and money would continue to be spent if I were to adjourn this matter today. There reaches a point in time where the costs of continually adjourning matters and, in my view, in circumstances where there has not been adequate explanation of the failure to prepare and be ready for the hearing today, means that further adjournments must be refused. I note there is not an application to adjourn it, although that is implicit in the document that Mr Kuksal sent. But costs need to be proportionate. Mr Kuksal had numerous opportunities to ensure that he was present at court. He could have engaged a lawyer to attend today. He could have sent the Court an affidavit which showed the efforts he had made to attend court in Sydney. Yet, none of that is before the Court. When I go back and consider the factors I am required to consider in pt 6 of the Civil Procedure Act there has been a failure to comply with a direction, namely to attend court today. But, more importantly, the principles that are set out in div 1 of pt 6 of the Civil Procedure Act, in my view, require the matter today to be dismissed. Mr Kuksal, as I said, has been given sufficient opportunity to agitate his case. The judgment creditor has incurred significant cost to get the matter before the Court. They have flown a witness up from Melbourne given Mr Kuksal's earlier indication that he required that person to be present for cross-examination. ACCORDINGLY I AM STATISFIED TODAY THAT THE INTEREST OF JUSTICE AND THE QUICK DETERMINATION OF THE REAL ISSUES IN DISPUTE REQUIRE THE NOTICE OF MOTION TO BE DISMISSED."
7. On the same day, solicitors for Lumi, LegalVision ILP Pty Ltd ("LegalVision"), advised Mr Kuksal that his notice of motion had been dismissed. On 12 March 2021, Mr Kuksal indicated his intention to appeal the Local Court decision.
8. On 16 March 2021, Mr Kuksal was sent a copy of the orders made by the Local Court. On 18 March 2021, Mr Kuksal confirmed his intention to again appeal the decision.
9. The Local Court ordered the issue of costs to be determined on 6 April 2021 and directed that each party file and serve written submissions by 31 March 2021. The matter was not determined on 6 April 2021 and was adjourned three times: on 6 April, 31 May and 1 July 2021. On the last occasion the magistrate determined that Lumi's application for costs will not be considered until the present appeal has been determined.
10. On 9 April 2021, Mr Kuksal filed the summons seeking to appeal the Local Court decision in this Court. The summons was served on 12 April 2021.
11. On 16 April 2021, LegalVision advised Mr Kuksal by letter that the summons was filed out of time, failed to seek leave and did not comply with the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). LegalVision set out the deficiencies, and referenced the relevant legislation. LegalVision invited Mr Kuksal to file and serve an amended summons, failing which Lumi would apply for orders dismissing the summons pursuant to UCPR 50.16A. On the same day, Mr Kuksal acknowledged the delay in filing the summons and explained that it was due to "technical issues with the Court's filing system".
12. On 19 April 2021, LegalVision acknowledged that Mr Kuksal may have a valid reason for filing the summons late but explained that his email did not address the deficiencies set out in their letter of 16 April 2021. On the same day Mr Kuksal responded by asserting that he did not believe the orders were interlocutory.
13. On 21 April 2021, the parties appeared before the Registrar for directions. The Registrar ordered that Mr Kuksal file and serve an amended summons by 14 May 2021. In the event Mr Kuksal failed to comply with that order, Lumi was to file and serve any notice of motion to dismiss or strike out the claim by 26 May 2021. On the same day LegalVision sent a letter to Mr Kuksal purporting to attach material supporting the conclusion that the decision was interlocutory, however the material was omitted. It was later provided to Mr Kuksal on 26 April 2021.
14. By 25 May 2021, Mr Kuksal had not filed an amended summons. Given that Lumi was required to file any motion to dismiss the summons by 26 May 2021, LegalVision sought confirmation of Mr Kuksal's position by email, noting Lumi's intention to file its motion in accordance with the Court's orders. The parties exchanged further correspondence in the course of which Mr Kuksal indicated he would file an amended summons on 26 May 2021.
15. On 26 May 2021, Mr Kuksal advised he would provide Lumi with an amended summons early the following day. On the same day Lumi filed the present notice of motion seeking an order that the appeal purportedly commenced by the summons be dismissed as incompetent. A copy of the motion was served on 27 May 2021.
16. On 31 May 2021, the parties appeared before the magistrate in relation to costs. During that hearing, Mr Kuksal stated that the material provided to him by Lumi did not convince him the matter was interlocutory and that his "original application is accurate" and "is not an incompetent application by any measure" (T10.23-11.6).

The applicable law

1. Depending on the circumstances of the judgment or order to be appealed, an appeal from the Local Court to the Supreme Court may proceed as of right, or may require leave. The Local Court Act 2007 (NSW) relevantly reads: "39 Appeals as of right A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law. ... 40 Appeals requiring leave … (2) A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court: (a) an interlocutory judgment or order. (b) a judgment or order made with the consent of the parties. (c) an order as to costs."
2. Where an appeal requires leave, UCPR 50.12 applies. It relevantly reads: "50.12 Leave to appeal (1) A summons seeking leave to 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 form part of the summons seeking leave to appeal. (3) The summons must be in the approved form and must contain a statement as to-- (a) whether the appeal relates to the whole or part only, and what part, of the decision of the court below, and (b) what decision the plaintiff seeks in place of the decision of the court below. (4) The summons must also contain a statement of-- (a) the nature of the case, and (b) the reasons why leave should be given, and (c) if applicable, the reasons why time to apply for leave should be extended, setting out briefly but specifically the grounds relied on in support of the appeal including, in particular, any grounds on which it is contended that there is an error of law in the decision of the court below. …"
3. The summons filed on 9 April 2021 by Mr Kuksal does not include any application for leave, nor any statement of the reasons why leave should be granted.
4. The magistrate in the Local Court dismissed Mr Kuksal's notice of motion to set aside the default judgment entered against him pursuant to Part 6 of the Civil Procedure Act. That Part relevantly reads: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. … 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects-- (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 58 Court to follow dictates of justice … (2) For the purpose of determining what are the dictates of justice in a particular case, the court-- (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant-- (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 59 Elimination of delay In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. 61 Directions as to practice and procedure generally (1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. … (3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following - (a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim"

Is leave to appeal required?

1. The question of whether leave is required turns on whether the judgment is interlocutory as set out in s 40(2) of the Local Court Act.
2. Both parties referred to Carr & Anor v Finance Corporation of Australia Limited (No 1) (1981) 147 CLR 246 ("Carr"). Carr relevantly reads at 248: "The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v Corney (1976) 50 ALJR 439 at 444. An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v Nominal Defendant (1966) 117 CLR 423 at 440. In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. … In my opinion the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain that it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of proceedings already taken - an inquiry quite inappropriate when the only issue is whether a right of appeal exists."

The plaintiff's submissions

1. Mr Kuksal provided only one paragraph of written submissions on the issue of whether the Local Court decision was interlocutory, however he did make further oral submissions on that topic.
2. The relevant paragraph in his submissions states: "[7] Despite it not being relevant, for what it's worth, with respect to your submission that orders dismissing applications to set aside default judgments are inherently interlocutory, we wish to advise that a perusal of Hall v Nominal Defendant [1996] HCA 36 and Carr v Finance Corporation of Australia Ltd (No 1) [1980], HCA together with Re Golding [2020] HCA 38 should leave no ambiguity that in circumstances where the application has been dismissed for non-compliance with overarching obligations under the Civil Procedure Act, on account of the adjudicator's assessment of the plaintiff's credit with respect to the explanation for his inability to comply with the a requirement to attend a hearing, a reapplication to the Court would not only be resisted on grounds of issue estoppel, but also the Court is likely to find that it is an abuse of process"
3. In oral submissions Mr Kuksal submitted that the defendant's submission that Carr decisively stands for the principle that a decision to set aside a notice of motion to set aside a default judgment is an interlocutory order is erroneous (T34.31-35).
4. Mr Kuksal explained that in deciding Carr the High Court relied on a quote from Hall v Nominal Defendant (1966) 117 CLR 423 ("Hall") which was devoid of its particular context as in Carr the Court addressed only the simplest form of dismissal of interlocutory orders, being a summary dismissal in circumstances where a party has not presented their case. Mr Kuksal submitted that when a matter is summarily dismissed following the full presentation of a party's case, the judgment will not be interlocutory (T38.37-44).
5. In support of his submission Mr Kuksal read from Taylor J's judgment in Hall at 441 from which the above extract in Carr was taken: "[4] A great deal has been said concerning the distinction between final and interlocutory orders but it has in the main, been a practice of courts to confine themselves to a consideration of the character of the particular order in question in each case. … However at an earlier stage Lord Alverstone C.J., when called upon to say whether a particular order was interlocutory or final said : "It seems to me that the real test for determining this question ought to be this : Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order ; but if it does not, it is then, in my opinion, an interlocutory order": Bozon v Altrincham Urban District Council (1903) 1 KB 547 at pp 548-549 Much the same test has been proposed on other occasions and, if I may say so with respect, it provides a broad test which is unexceptionable."
6. Mr Kuksal submitted that instead of looking at reductive tests that are derivations of complex considerations, the best manner in which to determine whether a judgment or order is interlocutory is to look at first principles (T38.49-39.5).
7. Mr Kuksal then continued to quote from Hall, however this time from the judgment of Barwick C.J at 429: "[13] Yet the question remains whether after such refusal to grant an extension of time a judge or a court may grant the same upon a fresh application, that is, in a subsequent independent proceedings. If this question be answered in the negative, the dismissal of the application for an extension of time within which to sue the nominal defendant would, in my opinion, clearly be a final order."
8. Mr Kuksal submitted that in Hall it was deemed inappropriate for the judge to consider the matter again because a determination had been made about the credit or the feasibility of the particular application, and therefore the Court ruled that it should be treated as a final order, not an interlocutory order (T39.27-33). Mr Kuksal described it as an absurdity if a person that were allowed to return to a Court and either ask the judge to overrule themselves, or ask another judge to overrule the first, as specific determinations have already been made in that particular case. He concluded that dismissal of applications to set aside summary dismissals or default judgment orders are interlocutory only where the applicant hasn't submitted their evidence for the consideration of the judge (T39.11-18).
9. Mr Kuksal's final submission on this issue was that Mason CJ's judgment in Autodesk Inc and Another v Dyason and others (1993) 176 CLR 300 ("Autodesk") reiterates the above points (T39.18-19). Mr Kuksal read from that judgment at [3] to [4]: "[3] ….But these statements do not exclude the exercise of jurisdiction to reopen a judgment which has apparently miscarried for other reasons, at least when the orders pronounced have not been perfected by the taking out of formal orders. … [4] … the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. ... What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing."
10. Mr Kuksal submitted that pursuant to Autodesk, and Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, the predominant purpose of an appellant court is to serve the interests of justice, and the management or the administration of affairs is a secondary consideration to the ultimate goal of achieving natural justice (T39.50-40.5).

The defendant's submissions

1. Lumi submitted that a judgment or order dismissing a motion to set aside a default judgment is an interlocutory judgment or order as it does not, as a matter of law, finally dispose of the rights of the parties: Carr; Nand v Fuji Xerox Australia Pty Ltd [2014] NSWCA 294 at [4]: J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd trading as Greenwood Group Realtors [2019] NSWCA 283 at [4]: Lauro v Minter Ellison [2020] SASC 137 at [4], [8]-[19].
2. Lumi submitted that this is so even if the application was dismissed on the merits or some other basis and whether or not any subsequent application is doomed to fail for some reason.
3. In oral submissions counsel for Lumi referred to the decision of the South Australian Supreme Court in Lauro v Minter Ellison [2020] SASC 137 ("Lauro"). Counsel submitted that in Lauro the Court traces High Court authority on this issue, including Hall at [10], Carr at [12], and further authorities at [13]. However counsel emphasised the passage at [15] and [16] which reads: "[15] In any event, Carr governs this matter, having been concerned with a refusal to set aside a default judgment. Undeterred, the respondent submitted that it did not follow from Carr that all judgments refusing to set aside a default judgment would be interlocutory in nature. … [16] This submission fails as a matter of accepted principle … Expressing it as a question of issue estoppel takes it no further: that is precisely what Gibbs CJ had in contemplation in the passage cited from Carr, above. That the second application may be doomed to failure by an issue estoppel arising in respect of the matters raised in the first application does not mean that the controversy the subject matter of the action has been settled." (T21.26-47)
4. In oral submissions counsel for Lumi, referring to the comments of Gibbs CJ in Carr, expanded on the reason for determining whether a matter is interlocutory simply by its legal effect, submitting that the rigour of the rule is mitigated by the Court's power to grant special leave: if a court decides a judgment is interlocutory, it does not preclude any appeal, but rather simply requires that leave is required first (T19.29-36). Counsel suggested that for this reason as a matter of policy the High Court reasoned to determine whether a decision is interlocutory on its face rather than by engaging in some inquiry into the procedural history or the particular circumstances or whether a subsequent application might be estopped (T20.3-10).
5. Responding to Mr Kuksal's submission that Hall and Carr are inconsistent, in oral submissions counsel for Lumi submitted that Hall is not a case about an order dismissing an application to set aside a default judgment, and that the majority did not hold that the relevant order was final, but rather they held it was interlocutory and Barwick CJ dissented. Counsel for Lumi also pointed out that at p 429, Barwick CJ expressly distinguishes Hall from a case involving a default judgment acknowledging the two were quite different (T62.40-50).
6. Responding to Mr Kuksal's written submission that a reapplication to the Local Court to set aside the Default Judgment would be resisted on grounds of issue estoppel, counsel noted "it's not clear what issue estoppel could arise in the present case, given there was no hearing on the merits." (T62.28-30)
7. Lumi further submitted that pursuant to s 40(2)(a) of the Local Court Act, a party may appeal an interlocutory judgment or order only by leave of the Supreme Court. That is so even if the appeal relates to a question of law: Ciszekv Enterprise Financial Solutions Pty Limited [2010] NSWSC 1265 at [10]. Accordingly any appeal from the Local Court decision in the present case could only be validly made with leave of the Supreme Court. As the summons does not seek leave, and does not contain a statement of the nature of the case and give reasons why leave should be given, as is required by UCPR 50.12(4), it is incompetent: Carr & Anor v Finance Corporation of Australia Limited (No 1) (1981) 147 CLR 246 at 248. 257-8: Council of the Municipality of Woollahra v Sved & Anor [1998] NSWCA 63; McGinn v Cranbrook School [2016] NSWCA 226; Coshott v Commonwealth Bank of Australia [2020] NSWCA 279 at [44].
8. Finally, in oral submissions counsel for Lumi noted that the decision of the Local Court was determined by reason of the Court exercising its powers of practice and procedure and Part 6 Civil Procedure Act. Accordingly, Mr Kuksal's submission that when a matter is summarily dismissed following the full presentation of a party's case the judgment will not be interlocutory is irrelevant (T22.15-23). This is because, the purpose of an application for summary dismissal is to avoid having a full presentation of a party's case.

Resolution

1. In the words of Gibbs CJ in Carr at 248, "The question whether a judgment is final or interlocutory for the purpose of the rules relating to appeals is one productive of much difficulty."
2. The argument advanced by Mr Kuksal is an unusual one. It proceeds from a contention that in deciding Carr the High Court misinterpreted the judgment in Hall, and suggests that Mason J's judgment in Autodesk, as well as the High Court decision in Re Golding [2020] HCA 38 ("Re Golding") (though he did not refer to Re Golding at all in hearing) supports this conclusion. He also asserted that the decision in Carr is erroneous. Mr Kuksal's submissions invite this Court to have regard to the practical rather than the legal effect of the decision of the Local Court and decide whether it was interlocutory on that basis.
3. In Carr at 248 the High Court stated in no uncertain terms: "In my opinion the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain that it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of proceedings already taken - an inquiry quite inappropriate when the only issue is whether a right of appeal exists." (my emphasis added)
4. There is no doubt that Carr is binding High Court authority for the proposition that an order refusing to set aside a default judgment is an interlocutory decision. The test to be applied for determining whether a judgment is final or not is whether it finally determines the rights of the parties, and such an order does not as a matter of law finally dispose of the rights of the parties, as the disappointed defendant is able to apply again to have the judgment set aside.
5. Regarding the purported inconsistency between Hall and Carr, I do not agree with Mr Kuksal's submission that there is one. As was pointed out by counsel for Lumi in oral submissions, Barwick CJ was dissenting in that case and in any event His Honour expressly distinguishes Hall from a case involving a default judgment. Hall relevantly reads at p 429: "[13] Yet the question remains whether after such refusal to grant an extension of time a judge or a court may grant the same upon a fresh application, that is, in a subsequent independent proceeding. ... [14] There is no precise authority bearing upon this point. The matter, it seems to me, is quite different from the case of successive applications for extensions of time for the taking of a step in an action or for setting aside a default judgment in an action. In these cases, the matter is under the control of and generally within the discretion of the court in which the action is brought. Also, the action is brought to enforce rights which, if they exist, derive from facts or circumstances apart from the statute or jurisdiction which gives the court control of the proceedings. The dismissal of an action for insufficiency in a statement of claim, or the entry of a non-suit is also quite different. In such cases the right, if any exists, is not determined by the order. But in the case of an application for extension of time under the Act, the only power given to the court is a power given in relation to an application to extend time. The questions for the court upon such an application are whether a sufficient reason has been given for the failure to sue in time, and, if so, whether it is just in all the circumstances to grant or refuse the application." (my emphasis added)
6. It should be noted that the decision as to whether a judgment is interlocutory or final is one that is not of severe consequence. If a judgment or order is deemed interlocutory due to its legal effect and in spite of its practical effect, the only consequence is that leave is required to appeal. As such, to paraphrase the words of Gibbs CJ in Carr at 248, the rigour of the application of this rule is mitigated by this Court's power to grant leave. Accordingly, in my view there are strong policy reasons for not embarking on a detailed enquiry which brings "yet a further complication to the complexities which already bedevil the existence of appeals as of right to this Court." See: Mason J in Carr at 256.
7. There is also the issue that deciding otherwise than in accordance with Carr would limit the discretion of this Court. Relevantly Mason J in Carr at 256 states: "In my opinion Barwick C.J. was entirely correct when he said that the setting aside of a default judgment is a matter "under the control of and generally within the discretion of the court in which the action is brought" Hall v Nominal Defendant (1966) 117 CLR, at p 429. … I can see no justification for arbitrarily imposing upon that discretion a rigid rule that the refusal of an application is a complete bar. The Court should preserve the generality of its discretion so as to protect its capacity to see that justice is done in a wide variety of cases." (my emphasis added)
8. In any event, the Local Court Decision was made by reason of the Court exercising its powers of practice and procedure. The matter was dismissed following Mr Kuksal's failure to appear at the hearing and to comply with the Court's directions. It is therefore, in my opinion, not a matter in which, even if one was to look to the decision's practical effect to determine whether it was interlocutory, it would be relevantly considered "final".
9. The question of whether the High Court has erred is not for this Court to decide, that is a matter for the High Court itself. There is no reason for further complicating the process of appeal by having regard to the practical effect of the decision of the Local Court, or for limiting the discretion of this Court. I would echo the words of Gibbs CJ in Carr that to do otherwise would be 'quite inappropriate' when the only question to be decided is whether leave is required.
10. Mr Kuksal's summons requires leave in accordance with s 40(2)(a) of the Local Court Act, and having not complied with the requirements of UCPR 50.12(4), Mr Kuksal's appeal is incompetent: Carr at 248 and 258.

Extension of time to file the summons

1. As Mr Kuksal's summons is one which requires leave pursuant to s 40(2)(a) of the Local Court Act, pursuant to UCPR 50.12(1)(a) it must be filed "within 28 days after the material date", or pursuant to UCPR 50.12(1)(c), "within such further time as the higher court may allow."
2. The 'material date' is the date on which the decision was pronounced or given, and pursuant to UCPR 50.2(1), a 'decision' includes a judgment, order, opinion, direction, or determination.
3. The summons records the hearing date as 10 March 2021 and the material date as 15 March 2021. 15 March 2021 is merely the date on which a copy of the orders was given to the parties. As the judgment was given on 10 March 2021, that is the material date: See Rosso & Anor v Acebond Pty Limited [2012] NSWSC 300 at [22]-[25].
4. The summons was required to be filed by 7 April 2021, however it was filed two days late on 9 April 2021. Therefore, pursuant to UCPR 50.12(2) an application for extension of time should have formed part of Mr Kuksal's summons, and pursuant to UCPR 50.12(4)(c) the summons should have also contained a statement of the reasons why time to apply for leave should be extended. It is unsurprising that the summons contains neither of these as Mr Kuksal believed at the time of filing that leave was not required.
5. On 22 September 2021, Mr Kuksal provided this Court with an affidavit affirmed on the same day ("Kuksal Aff 22 September 21") which explained the reasons for the delay.

The plaintiff's submissions

1. Mr Kuksal submitted that following the Local Court's dismissal of his notice of motion to set aside the default judgment in proceedings 2019/358522, on 7 April 2021 he attempted to file his application to appeal with the Supreme Court, however due to technical issues with the electronic lodgement system used by the Court Registry he was unable to: Kuksal Aff 22 September 21 at [4].
2. Mr Kuksal submitted that he called the Registry the following day and was advised that they were aware of the disruption, and asked him to confirm by email that the disruption had affected the filing of his summons which he did: Kuksal Aff 22 September 21 at [5].
3. A copy of the email correspondence between Mr Kuksal and the Registry is exhibited to Kuksal Aff 22 September 21 as Exhibit SK-220921. The emails between Mr Kuksal and the Registry refer to his earlier phone call, evidence the filing disruption and substantiate his submissions.

Resolution

1. It is incontrovertible that the summons does not comply with the requirements in UCPR 50.12, as it contains no application for an extension of time or statement of reasons explaining the delay in filing.
2. Mr Kuksal's delay in filing the summons is short as it was filed a mere two days late. The email correspondence exhibited in SK-220921 evidences that this delay was a matter outside Mr Kuksal's control, and that despite his attempts to file the summons on time a disruption with the online filing system prevented him from doing so. I accept his explanation so far as delay is concerned.
3. Despite the above, having been filed out of time and having not complied with the requirements of UCPR 50.12, that is including in the summons an application for an extension of time and a statement of reasons for delay, it is incompetent: See Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 at [36], [54] and [129].

Should leave be granted?

1. It is uncontentious that Mr Kuksal requires leave to appeal. There is no appeal as of right against the interlocutory orders of the Local Court. Leave will only be granted where there are substantial reasons to allow appellate review: Australian Securities and Investments Commission v Schlaepfer [2017] NSWCA 247 at [40]. The party seeking leave will usually be required to demonstrate that there is an issue of principle, question of public importance or reasonably clear injustice going beyond something that is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [33].
2. Despite this hearing only concerning the narrow issue of the competency of Mr Kuksal's appeal, and although Mr Kuksal's summons is incompetent both by reason of his failure to make an application for an extension of time, and by reason of his failure to seek leave, I will nevertheless briefly consider the question of whether leave should be granted as Mr Kuksal spent quite some time addressing his appeal grounds.
3. Counsel for the defendant made no submissions as to Mr Kuksal's appeal grounds taking the view that as they were not relevant to the present motion he did not need to.
4. Mr Kuksal submits three grounds for appeal which are repeated earlier in this judgment. Although the summons itself did not address his appeal grounds, Mr Kuksal's written submissions did, as did his affidavit of 16 June 2020 ("Kuksal Aff 16 June 20") upon which he relied, and which formed part of Exhibit SK-210901 to his affidavit of 21 September 2021 ("Kuksal Aff 21 September 21") which he also relied upon.
5. Mr Kuksal did not address each of his appeal grounds discretely but rather provided submissions which represented the totality of what he believed gave him grounds to appeal. Though the grounds are intertwined, I have attempted to separate them as best I could.

Was the NSW Local Court an appropriate venue for the original matter?

1. Mr Kuksal's third ground of appeal is: "(3) that the Magistrate failed to follow the law with respect to the determination of whether a NSW Local Court was the appropriate venue for the original matter leading to the default judgment."
2. Mr Kuksal did not make submissions on this issue. I can only presume that his assertion that the Magistrate failed the follow the law proceeds from the facts that the parties are located in Victoria and the loan agreement and associated guarantee were presumably signed in Victoria.
3. Both the loan agreement and the associated guarantee form part of Exhibit SK-210901, however Exhibit SK-210901 contains no page numbers so their precise location within that exhibit is unfortunately indeterminate.
4. The loan agreement relevantly reads at cl 19: "19. General 19.1 Governing Law This Agreement is governed by the laws applicable in the State of New South Wales, Australia. 19.2 Jurisdiction Each party submits to the non-exclusive jurisdiction of the courts of the State of New South Wales, Australia"
5. The guarantee relevantly reads at cl 9: "9. General 9.1 Governing Law This Agreement is governed by the laws applicable in the State of New South Wales, Australia. 9.2 Jurisdiction Each party submits to the non-exclusive jurisdiction of the courts of the State of New South Wales, Australia"
6. Therefore the New South Wales Local Court is indisputably an appropriate venue to hear the original matter.

Was Mr Kuksal denied procedural fairness?

1. Mr Kuksal's first ground of appeal is that he was denied procedural fairness and natural justice.

The plaintiff's submissions

1. Mr Kuksal's submissions on this ground of appeal relate to an allegation that a hypothetical fair minded observer who has knowledge of the circumstances would have apprehended bias in the Magistrates conduct in the proceedings.
2. In written submissions Mr Kuksal relevantly submitted the following: "[3] An examination of pages 13 and 14 of the transcript from the hearing of 10 August 2020 makes it clear that [the magistrate] had grasped the submission that Mr Kuksal had made about the indisputable fact that he had not been served any papers with respect to the proceeding until after a default judgment had been obtained … Nonetheless through an error of law, amidst general exchange which may have led a reasonable observer to apprehend that Her Honour may have been biased toward Mr Kuksal, Her Honour failed in the performance of her judicious duty. [4] Her Honour's dismissal of the proceeding on 10 March 20201 was also consistent with a pattern of discourse that revealed a reasonably conspicuous unpleasantness toward Mr Kuksal. This was starkly contrasted with Her Honour's exchanges with Mr Braithwaite. Furthermore we are aware that on multiple occasions, Her Honour had instinctively placed higher credit in assertions made by Mr Braithwaite in comparison to Mr Kuksal's assertions on the same subject. One such occasion was on 2 November 2020, when Her Honour's unambiguous and definitive recollection of events in favour of Mr Braithwaite's position (page 25 of the transcript from the hearing of 2 November 2021) was proven to be ill-founded, Mr Kuksal had been obliged to make an application for Her Honour's recusal. Though the application was ultimately rejected, Her Honour's conduct during the subsequent hearing was such that, a reasonable observer who may have apprehended that Her Honour was biased against Mr Kuksal, could have only gathered further justification in favour of their apprehension. [5] It is also worth emphasising that an identifiable source of Her Honour's perceived prejudice against Mr Kuksal may be conveniently found in the irrelevant, yet inflammatory, extraneous information that your client introduced into the proceeding in an attempt to destroy Mr Kuksal's credibility before Her Honour. Besides being improper, the information was also misleading as it was contextually incomplete, e.g., when your client introduced Sifris J's critical comments about Mr Kuksal, they flagrantly omitted that the independent barrister representing Mr Kuksal, Daryl Williams QC, had found it necessary to make three separate applications for His Honour's recusal during that trial and this His Honour's findings and conduct of the trial were the chief subject of a yet to be decided Court of Appeal application lodged on Mr Kuksal's behalf. [6] Hence, contrary to Mr Braithwaite's rather outlandish assertion that Her Honour had effectively and inexplicably erased all the evidence that Mr Kuksal had already adduced in the proceeding because Mr Kuksal had failed to attend the hearing in person on 10 March 2021, Mr Kuksal's position is that Her Honour had considered all the evidence that Mr Kuksal had adduced over the course of the proceeding (as is clear from the transcripts). Moreover, despite having adequate information to arrive at the right judgment in accordance with the applicable law, Her Honour erred in judging the matter, in circumstances where her consistent demeanour toward Mr Kuksal presented a reasonable apprehension of bias."
3. In oral submissions Mr Kuksal relevantly submitted the following: "The suggestion that [the magistrate] simply dismissed my application to set aside the default judgment because I was late on one day is almost accepted." (T42.1-3) … Firstly, Her Honour dismissed the application because she concluded that the evidence that had been submitted to her was not sufficient to have a winning argument that the default judgment would be set aside, or should be set aside. I had submitted all the evidence that I wanted to submit, or that I could have submitted at that stage. There was nothing else to submit and it would be improper and also unlikely that her Honour would simply not consider the evidence that had been submitted to her in two previous hearings because I did not show up and presented a less than acceptable medical certificate for Her Honour's standards. At the third hearing, there's no reason why she should not have considered the evidence that was before her in the first two hearings. There's also no evidence that because I was late, she struck off my evidence from the record, as a punitive measure. In the absence of Her Honour saying otherwise I think the appropriate way of understanding the situation is that Her Honour considered all the evidence that was before her and made a determination as to the facts of the matter after factoring in her opinion of my credibility because of my absence at that hearing. She had considered all the facts in the matter." (T43.16-33)

Resolution

1. "The expression procedural fairness… conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case": Mason J in Kioa v West (1985) 159 CLR 550, at 585.
2. Procedural fairness generally involves two considerations, the fair hearing rule and the rule against bias: See Gleeson CJ in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [25]. Mr Kuksal submissions appear to be aimed at the latter, given that in oral submissions he stated: "I had submitted all the evidence that I wanted to submit, or that I could have submitted at that stage" (T43.19-20) … I think the appropriate way of understanding the situation is that Her Honour considered all the evidence that was before her and made a determination as to the facts of the matter after factoring in her opinion of my credibility" (T43.29-32)
3. He is therefore unlikely to be submitting that he had not been afforded an opportunity to be heard in violation of the fair hearing rule.
4. The rule against bias seeks to ensure that a decision maker is impartial and can be considered to have not pre-judged a decision. Where bias is alleged, cases may be divided into those alleging actual bias, and those alleging an appearance or apprehension of bias. Mr Kuksal does not appear to be alleging actual bias, but rather the apprehension of bias having relevantly submitted: "[5] … Her Honour's conduct during the subsequent hearing was such that, a reasonable observer who may have apprehended that Her Honour was biased against Mr Kuksal, could have only gathered further justification in favour of their apprehension" (See Mr Kuksal's written submissions at [4])
5. Whether there has been an apprehension of bias, is determined by reference to the standards of a hypothetical fair minded observer who has knowledge of the circumstances: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Re JRL; Ex parte CJL (1986) 161 CLR 342; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Johnson v Johnson (2000) 74 ALJR 1380; 174 ALR 655.
6. Despite Mr Kuksal's submission that the Magistrate considered "all the evidence before her and made a determination as to the facts of the matter" the Magistrate gave her reasons for her decision at the hearing of 10 March 2021, which can be found starting at page 6 line 4 of that transcript. A relevant portion of Her Honour's reasoning is reproduced at [16] in this judgment.
7. In giving her decision, Her Honour made reference to the history of the matter, the numerous adjournments that had been granted due to COVID restrictions and her order that the parties attend the hearing in person as proceeding by phone was too difficult made on 2 November 2020 (T6.4-32).
8. Her Honour also made reference to the fact that the judgment creditor (Lumi) was ready to proceed with the hearing on 10 March 2021 and had made arrangements for legal representatives and witnesses to attend Court (T6.32-48).
9. Her Honour considered Mr Kuksal's medical certificate, which was sent after having been contacted by a court officer on the day of the hearing, contained no official marks (for example no address, no seal, and no phone number), and was not accompanied by an affidavit explaining the situation or showing that Mr Kuksal had made arrangements to come to Sydney for the hearing (T6.43-7.13).
10. Her Honour then set out the principles governing civil procedure in New South Wales, making reference to the overriding purpose of the Civil Procedure Act to facilitate the just quick and cheap resolution of the real issues in proceedings contained in s 56, the objects of case management in s 57, and the dictates of justice in s 58 (T7.22-50).
11. Her Honour then made reference to s 61 of the Civil Procedure Act which empowers the Court to dismiss the matter in circumstances where a party has failed to comply with a direction, and her powers of practice and procedure in Part 6 Division 1 of the Civil Procedure Act.
12. In my view, a hypothetical fair minded observer who has knowledge of the circumstances would not apprehend that Her Honour exhibited any bias toward Mr Kuksal in the making of her decision. The matter was dismissed not in circumstances where the totality of the evidence was considered, but rather pursuant to the Court's powers of practice and procedure. For those reasons it is my view that Mr Kuksal has not been denied procedural fairness in such a way that gives him grounds to appeal the decision.

Did the Magistrate fail to follow the law with respect to the determination of proper service?

1. Mr Kuksal's second ground of appeal is that the Magistrate failed to follow the law with respect to the determination of proper service in the original matter.

The plaintiff's submissions

1. Mr Kuksal's submissions in relation to this ground centred on the assertion that he had not been served a letter of demand by Lumi in advance of their application for default judgment and this meant the proceedings were brought in bad faith and were an abuse of process.
2. In oral submissions Mr Kuksal said the following: "… the way Lumi has gone about this is that they have said that if there is a breach by the borrower, Efektiv Pty Ltd, we won't send letters of demand to everybody at the same time and everybody is liable for the debt and if they don't respond to the demand, then we will pursue the claim against everybody. … what I'm trying to say is that I would have only been in breach of the agreement with Lumi had I been served with a letter of demand. If I was never served with a letter of demand, then the proceeding was brought in bad faith and, again, I have a number of authorities that will stipulate that that is an abuse of process, but I think it's not a controversial fact that if the agreement between two parties says that the claim will only be activated after a certain event were to take place, then it is inappropriate for the party that benefits from that particular provision to start a proceeding." (T31.24-45)
3. Mr Kuksal substantiated his submission that he had not been served with the letter of demand purportedly served by Lumi on 10 October 2019 by reference to Lumi's statement of claim filed on 14 November 2019 (the "statement of claim") and Kuksal Aff 16 June 20.
4. In the statement of claim Lumi lists the address at which Efektiv was served as being XXXX Coventry Street, Southbank, VIC 3006 (the "Coventry St address") and Mr Kuksal's address as XXXX Collins Street Docklands, VIC 3008 (the "Collins St address").
5. In the affidavit of service of Sam Fimai on 10 February 2020 ("Fimai Aff 10 Feb 20") he says at [2]-[4]: "2. On 10th February at 1:56pm, I personally serviced the Fourth Defendant, Shivesh Kuksal with the following documents: a. Statement of Claim filed in these proceedings on 14 November 2019 and b. Form 1 SEPA Notice 3. I served the documents referred to in paragraph two (2) by delivering them to Shivesh Kuksal personally at Efektiv, XXXX Coventary Street, Southbank VIC 2006. 4. At the time of service, I asked "Are you Shivesh Kuksal"? to which the male replied "Yes, I am Shivesh Kuksal"."
6. In Kuksal Aff 16 June 20 at [6] Mr Kuksal deposed that after the appointment of a liquidator to oversee Efektiv's affairs, he and all other entities related to Efektiv moved from the Coventry address to XXXX Nossal Drive, Point Cook, VIC 3030 ("the Nossal Drive address"). He deposes this transition occurred before 26 January 2020.
7. Mr Kuksal also deposed that Efektiv's address for service had changed to XXXX William Street, Melbourne, VIC 3000 ('the liquidator's address") as of 4 February 2020: Kuksal Aff 16 June 20 at [7]. In support of this Mr Kuksal referred to a copy of the ASIC issued Current and Historical Company Extract which was exhibited to Kuksal Aff 16 June 20 as SK-1 which substantiated his submission, showing Efektif's address had indeed changed to the liquidator's address on 4 February 2020.
8. Mr Kuksal deposed that throughout February and March of 2020 he exclusively worked out of the Nossal Drive address, had no reason to attend the Coventry St address, and specifically, did not attend the Coventry St address on 10 February 2020 when he was purportedly served by Mr Fimai.
9. Mr Kuksal made reference in oral submissions to the affidavits of Lulu Xu deposed on 15 June 2020 (exhibited to Kuksal Aff 16 June 20 as SK-3), Dennis John Clark deposed on 15 June 2020 (exhibited to Kuksal Aff 16 June 2020 as SK-4), and Maria Di Gegorio deposed on 16 June 2020 (exhibited to Kuksal Aff 16 June 2020 as SK-5). These affidavits supported Mr Kuksal's submission that he had been working out of the Nossal Drive address in February and March of 2020 and to the knowledge of each that he had not attended the Coventry St address on 10 February 2020.
10. In oral submissions Mr Kuksal went to great lengths to point out the numerous differences between Fimai Aff 10 February 2020 and the affidavit of service of Sam Fimai on 17 July 2020 ("Fimai Aff 17 July 2020"). This included that Mr Fimai seemed to have a better recollection of the events which occurred on 10 February 2020 in Fimai Aff 17 July 2020 than he did in Fimai Aff 10 February 2020 as there was greater detail about how service was effected on 10 February 2020. In oral submissions Mr Kuksal submitted that the reason for the greater detail in Fimai Aff 17 July 2020 may have been to bolster the Mr Fimai's credibility in response to his depositions in Kuksal Aff 16 June 2020 (T44.40-T47.7).
11. In oral submissions Mr Kuksal referred to Kuksal Aff 16 June 2020 at [21] to [23] where he deposed that he had never used the Collins St address as either an address for service, or a residential address, and that the Collins St address did not even exist as a valid postal address on the date Lumi's letter of demand was purported to have been mailed to him, the lot having been subdivided before the purported date of service (T49.16-50).
12. Mr Kuksal made reference to Bruce v Odhams Press Ltd [1935] 1 KB 697 and Geotech Pty Ltd v Premier Developments Pty Ltd [2017] VCC 874 ("Geotech"), though it was not especially clear which passages in particular Mr Kuksal wished to rely upon. In the copy of the Geotech judgment which Mr Kuksal submitted on the morning of the hearing, a number of passages were highlighted. Relevantly to the issue of service, the following was highlighted: "29. The cases on service indicate that, where there is a dispute as to delivery, there is a practical difficulty in defeating such an allegation with actual evidence of delivery. The best evidence of delivery is by hand to the registered office. In Deputy Commissioner of Taxation v Manta's on the Beach Pty Ltd [2012] FCA 417, Justice Logan did not set a high bar for a Court to infer that a document had not been delivered from evidence that it was not received. Non-delivery may be inferred where there is evidence from the defendant of how mail is received and the usual practice of in relation to collection and handing of mail."
13. In oral submissions, Mr Kuksal made reference to this paragraph briefly at T56.29-31.
14. In oral submissions Mr Kuksal referred to White v Western [1968] 2 QB 647 and Sargent v Veneris and Anor BC9507179 (Unreported) which he submitted were authority for the proposition that where proceedings are not in compliance with any rule (such as in this matter where service was not validly effected) a party who has had judgment entered against them was entitled to have that judgment set aside as of right as it was entered irregularly (T59.4-48).
15. Mr Kuksal submitted that all these matters were brought to the attention of the Magistrate in the Local Court who did not take account of the fact that the issues with service meant the default judgment was entered irregularly and therefore he did not have to establish a defence on the merits or explain his delay in filing his notice of motion to set aside the default judgment but rather he should have been entitled to have the default judgment set aside as of right. Mr Kuksal submitted the magistrate's failure to do so meant that she had fallen into jurisdictional error (T51.7-52.3).

Resolution

1. Whether or not Mr Kuksal was served with the notice of demand and the statement of claim is a factual dispute between himself and the process server. It would require a finding of fact. An appeal cannot be brought in this Court as to a finding of fact.

Final Resolution

1. For the reasons set out above I do not believe that there are substantial reasons to allow appellate review. There is no question of public importance, nor is there a reasonably clear injustice beyond reasonably arguable allegations. It is my view that Mr Kuksal's appeal is hopeless. Accordingly I would not allow Mr Kuksal leave to appeal, were that a determination I was required to make in these proceedings.

Result

1. The appeal in proceedings numbered 2019/358522 commenced by summons filed 9 April 2021 is dismissed as incompetent.

Costs

1. Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant's costs on an ordinary basis.

The Court orders: 1. The Court orders that the appeal in proceedings numbered 2019/358522 commenced by summons filed 9 April 2021 is dismissed as incompetent. 2. The plaintiff is to pay the defendant's costs on an ordinary basis. 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 2021