• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Category: Principal judgment

Parties: Misheck Mukonoweshuro (plaintiff)
Michael John Vaughan (first defendant)
James Conomos (second defendant)

Representation: Counsel:
Misheck Mukonoweshuro (plaintiff – self-represented)
S Clemmett (first and second defendants)
Solicitors:
Gilchrist Connell (first and second defendants)

File Number(s): 2026/110072

Publication restriction: Nil

JUDGMENT EX TEMPORE

Introduction

1. These reasons deal with an application for leave to appeal by Misheck Mukonoweshuro (‘the plaintiff’), who is dissatisfied with an order setting aside a default judgment made by a Local Court Magistrate on 21 January 2026.

2. The commencement of proceedings in this Court by the plaintiff, who appears in person, has generated significant procedural disquiet between the parties: the defendants, by notice of motion filed 22 May 2026, seek summary dismissal of the proceedings, and the plaintiff, by notices of motion filed 7 July and 20 August 2026, seeks leave to file an amended summons and leave to appeal the Magistrate’s decision.

Background facts

3. I will address the background facts briefly, and across four parts: first, a short summary of the plaintiff’s action; secondly, the entry of default judgment and the defendants’ application to set it aside; thirdly, the order made by the Magistrate and the reasons given for making it; and, fourthly, the proceedings in this Court.

A short summary of the plaintiff’s action

4. By statement of claim filed in the Lithgow Local Court on 11 June 2025, the plaintiff commenced proceedings against his former solicitor (‘the first defendant’) and barrister (‘the second defendant’), who had represented him in criminal proceedings in and during 2022 and 2023. It appears that those proceedings were resolved adversely to the plaintiff, although precisely what occurred is unclear. What is clear, however, is that the plaintiff is much aggrieved by the way and manner in which he was represented – and, apparently, treated – by the defendants. By commencing proceedings against them, he seeks to vindicate that position.

5. The statement of claim was prepared by the plaintiff without legal assistance, and the form of it is problematic, to say the least. The pleading issues can be put to one side, as they do not directly arise in these proceedings. It is sufficient to note that the statement of claim outlines three causes of action: “[m]aterial breach of the contract, breach of the Australian Consumer Law… and multiple breaches of the Legal Profession Uniform Law (NSW)”.

6. The statement of claim was served, by post, on the first defendant and received by him on 5 November 2025. The second defendant, who by that time was apparently employed by the first defendant, was not – the evidence is somewhat ambiguous – separately served (Haslam December 2025 affidavit at [15], [24]). Before the Magistrate, however, the defendants’ solicitor accepted that they “[were] served with the statement of claim on 5 November” (CB 70). For completeness, it should be noted that the plaintiff asserts that the second defendant was served separately (plaintiff’s May 2026 affidavit at [5]; CB 52). Presently, nothing material turns on the question of service.

7. The first defendant’s solicitor received instructions to act for the first defendant on 20 November 2025 and, the next day, he filed a notice of appearance which he then served on the plaintiff using the email address provided in the statement of claim (Haslam December 2025 affidavit at [16]-[18]). On 26 November 2025, the first defendant’s solicitor sent a letter to the plaintiff, again by email, outlining, inter alia, deficiencies in the statement of claim, requesting a proposed amended statement of claim and seeking further and better particulars (Haslam December 2025 affidavit at [19]; CB 227-228). As Ms Clemmett submitted, the plaintiff clearly received that letter, which is evident from a review of the transcript before the Magistrate on 21 January 2026.

8. No responses were received from the plaintiff to the letters sent by the first defendant’s solicitor (Haslam December 2025 affidavit at [20]; CB 220).

9. On 8 December 2025, the first defendant’s solicitor received instructions to also act on behalf of the second defendant (Haslam December 2025 affidavit at [21]; CB 220).

The entry of default judgment and the defendants’ notice of motion

10. On 9 December 2025, the plaintiff obtained default judgment against both defendants because neither had filed a defence. He did so because 35 days had elapsed since the statement of claim was served on them.

11. It is clear that, before obtaining default judgment, the plaintiff did not provide any notification to the defendants (or their solicitor) of his intent to do so.

12. The defendants’ solicitor filed a notice of motion on 12 December 2025, seeking, inter alia, an order that the default judgment be set aside (CB 214). It was accompanied by his affidavit sworn 11 December 2025 (CB 217).

13. As an aside, Ms Clemmett pointed out that the form of the order made by the Magistrate is irregular because the plaintiff’s claim was unliquidated – therefore, the order for default judgment should only have involved entry of judgment with damages to be assessed.

The Magistrate’s order and the reasons given

14. Upon the filing of the notice of motion, it was listed for hearing on 13 January 2026. No hearing occurred on that day, but it was dealt with by a Local Court Magistrate on 21 January 2026, and the following orders were made:

“1. The Plaintiff’s Default Judgment to be set aside.

2. The Plaintiff is to provide a response to the First Defendant’s request for further and better particulars dated 26/11/25 within 14 days of 21/01/26.

3. The Plaintiff is to circulate a proposed Amended Statement of Claim within 28 days of 21/01/26.

4. Proceedings to be listed for Directions.

5. Costs reserved.”

15. The Magistrate gave brief ex tempore reasons for setting aside the default judgment, which expressly incorporated a number of the “preliminary observations” that he made when engaging with the parties’ arguments during submissions. The substance of the Magistrate’s reasons involved the following:

16. First, based upon the alleged conduct of the defendants which, substantially, arose in the context of the criminal proceedings, they had a “solid case” or there was a “very strong case for the defence” – which should be taken as a finding that the defendants had more than an arguable case (CB 72.5; 73.35).

17. Secondly, there was “no delay in bringing the application to set aside the default judgment” (CB 72.7).

18. Thirdly, given the terms of the letter dated 26 November 2025, the parties “were in negotiations” to deal with the argued deficiencies in the statement of claim and, despite that, the plaintiff “went off to the registry and got a default judgment” (CB 72.40). In this respect, the Magistrate held that “there was a bona fide inquiry being made by the defendants” about the form of the plaintiff’s claim and how they were to respond to it, and it “was far from a case of the defendants sitting on their hands, or having their heads in the sand about the matter; they were engaged in the process…” (CB 75.35).

19. Fourthly, “[i]n all the circumstances, it [was] in the interest[s] of justice and appropriate to set aside the default judgment” (CB 73.40).

The proceedings in this Court

16. The plaintiff filed a summons in this Court on 18 February 2026 that, in effect, seeks reinstatement of the default judgment entered on 9 December 2025.

17. That summons was filed without legal assistance. It has some shortcomings. The plaintiff seeks to overcome them by relying upon a notice of intention to appeal filed 17 June 2026 and the orders sought in the two notices of motion that he has filed – discussed next. In particular, he seeks to address his failure to identify the grounds for why this Court should grant leave to appeal the decision by providing a document titled: “Statement of the questions of law” (CB 189).

18. As noted, three notices of motion have been filed in these proceedings – one by the defendant and two by the plaintiff:

19. Defendants’ notice of motion filed 22 May 2026: the defendants seek an order dismissing the proceedings for a range of reasons, including shortcomings in the summons (CB 27).

20. Plaintiff’s notice of motion filed 7 July 2026: the plaintiff seeks leave to amend his summons (albeit without identifying the proposed amendments or annexing the draft summons sought to be relied upon) (CB 17).

21. Plaintiff’s notice of motion filed 20 August 2026: the plaintiff seeks an order in these terms: “Leave to appeal for the Summons Seeking Leave to Appeal” (CB 21).

The nature of the appeal to this Court

19. A party to proceedings before the Local Court “who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law”: s 39(1) of the Local Court Act 2007 (NSW) (‘the LCA’). By s 40(1) of the LCA, a party to proceedings before the Local Court “who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court”. And, by s 40(2)(a) of the LCA, a party to proceedings who is dissatisfied with an interlocutory judgment or order may appeal to the Supreme Court, but only by leave.

20. The order setting aside the default judgment was an “interlocutory order”, meaning the threshold requirement of leave constrains any appeal: s 40(2)(a) of the LCA.

21. The matters affecting a decision to grant leave under s 40 of the LCA were considered in Namoi Sustainable Energy Pty Limited v Buhren [2022] NSWSC 175 at [34]-[39]. They correspond with the well-established principles that apply to granting leave to appeal in the context of civil proceedings – namely, that leave will ordinarily only be granted “concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond… being merely arguable”: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Corcoran v Far [2020] NSWCA 140 at [12]; Weston Energy Pty Ltd v National Ceramic Industries Australia Pty Ltd [2026] NSWCA 7; 400 FLR 323 at [93] (‘Weston Energy’). Also bearing upon the question of leave is the monetary amount involved: it “is a key factor in determining whether to grant leave to appeal”: Weston Energy at [93].

22. It is also well-established “that the Court exercises great restraint in interfering with an interlocutory decision on a matter of practice and procedure”: Mohareb v State of New South Wales [2023] NSWCA 289 at [12] (and the cases there cited).

Discussion and consideration

23. There is no question that, when considering whether the default judgment should be set aside, the Magistrate correctly directed himself to the appropriate rule: r 36.16(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW).

24. There is also no question that, when determining whether to exercise the power conferred by that rule to make an order of that kind, the Magistrate was required to consider all the circumstances of the case and ss 56-60 of the Civil Procedure Act 2005 (NSW). The recognised “circumstances” include the following “three factors [that are] particularly relevant to the exercise of the discretion conferred” by the rule – namely, whether the defendants had an arguable defence; whether they had provided an adequate explanation for the delay in filing a defence; and whether the plaintiff would be prejudiced if the default judgment was set aside: Dai v Zhu [2013] NSWCA 412 at [66], [83] (‘Dai’). It is also necessary to consider whether “the interests of justice [favour allowing] the party seeking to set aside a default judgment [being] permitted to defend the proceedings on the merits”: Dai at [83], citing Adams v Kennick Trading (Int) Ltd (1986) 4 NSWLR 503, 506-507.

25. As is apparent from the Magistrate’s reasons, his approach accorded with these principles – informed by them, he considered, and he made findings of fact about, the “circumstances” presented: see [15], above. There is no suggestion, from an examination of the Magistrate’s reasons or what was advanced by the plaintiff, that the approach involved any error of principle, mistake of fact or the Magistrate taking into account an irrelevant consideration or failing to consider a material one – nor anything remotely approaching this. On the contrary, given the facts presented, the Magistrate’s decision was well-nigh an inevitable one.

26. The position is not otherwise because of the matters raised in the plaintiff’s document titled: “Statement of the questions of law”. That is because, if anything, the matters raised tend to reinforce the prospect that there is an arguable defence based upon advocate’s immunity. Further, although that finding is measured (which, I add, is all that is required in an application of this kind), that is necessarily the case given the deficiencies in the plaintiff’s statement of claim. Here, the extent to which that defence would be engaged for any of the alleged acts or omissions of the defendants would, critically, turn upon a properly pleaded claim being formulated by the plaintiff and, assuming that occurs, be a matter for trial.

27. The plaintiff also argued that the filing of an amended notice of motion by the solicitor for the defendants, and the reliance upon it at the hearing, caused some procedural unfairness. That submission is without substance for the following reasons. First, the original notice of motion filed by the defendants sought an order setting aside the default judgment, but it contained a mistake about the particular rule relied upon. The amended notice of motion simply corrected that error by referring to “rr 36.16(3A) and 36.16(2)” of the UCPR. Secondly, the substance of the defendants’ “case” for setting aside the default judgment remained the same, and was contained in the affidavit of the solicitor served with the notice of motion in December 2025. Thirdly, the Magistrate, in the course of submissions, put the substance of the defendants’ “case” to the plaintiff, and he responded to it. At no point did he suggest he was not able to do so – in fact, he said that his responses were contained within his affidavit (sworn 12 January). No unfairness of any kind arose in what occurred.

28. Given no error of any kind arises, no possible injustice arises from refusing the plaintiff leave to appeal. That order will be made. It is also made because the order sought to be challenged is one relating to a matter of practice and procedure (see [22], above; In re t**he Will of Gilbert (1946) 46 SR (NSW) 318, 323), and, further, because no issue of principle or question of public importance arises.

29. The conclusion that I have reached, and the order refusing leave, means that the three notices of motion fall away. They will be dismissed.

Orders

30. For the above reasons, I make the following orders:

31. Refuse the plaintiff leave to appeal the order made in the Local Court on 21 January 2026.

32. Order the plaintiff’s summons filed 18 February 2026 be dismissed.

33. Order the defendants’ notice of motion filed 22 May 2026 be dismissed.

34. Order the plaintiff’s notice of motion filed 7 July 2026 be dismissed.

35. Order the plaintiff’s notice of motion filed 20 August 2026 be dismissed.

36. Order the plaintiff to pay the defendants’ costs of the proceedings in this Court.

**********