Khanna v Sabi Foods International (Aust) Pty Ltd

On 15 April 2015, Mr Sanjeev Khanna, the plaintiff, filed a Summons Commencing an Appeal, in relation to a judgment of the Local Court (Magistrate Pierce) delivered on 13 March 2015. On that date an ex tempore judgment was given in favour of the defendants, Sabi Foods International (Aust) Pty Ltd and Uvaraja Hariramakrishnan. The plaintiff was ordered to pay the defendants’ costs on an indemnity basis, as agreed or assessed, within 28 days and to pay previously ordered costs in the proceedings forthwith.

By way of Amended Notice of Motion filed 3 September 2015, the defendants sought an order dismissing the present proceedings. That application is made pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or, in the alternative, an order pursuant to rule 50.8 providing $20,000 as security for costs of the appeal or such order as the court sees fit. This judgment accordingly involves a determination of the Amended Notice of Motion.

Throughout the proceedings the plaintiff has been unrepresented. English is not his first language. He provided evidence of medical conditions which he says have affected his ability to appear at scheduled hearings in the Local Court on a number of occasions.

The plaintiff operated a business, NYSA International. In the course of doing so he acquired food and packaging materials from various sources.

The first defendant is a company involved in the packaging and distribution of Indian foods and spices, including a product called Miller Pure Ghee. Ghee is a form of clarified butter used in Indian cooking. The second defendant is a director of the first defendant.

The plaintiff commenced the proceedings in the Local Court on 18 September 2013 (case no. 2013/281755).

An Amended Statement of Claim was filed on 12 December 2013. A Further Amended Statement of Claim was filed on 13 February 2014 (see Annexure “A” to Mr Garnon’s affidavit).

The Plaintiff’s claim in the Local Court was pleaded in the Further Amended Statement of Claim filed in the Local Court on 13 February 2014, a copy of the same being Annexure “A” to the affidavit of Mr Garnon, solicitor on the record for the defendants, affirmed 26 August 2015.

Paragraph 12 of the Amended Statement of Claim is in the following terms:

In paragraph 13, subtitled “Second Defendants” it was, in part, alleged that the directors (as named) were vicariously liable “in law for legal claims made against its agents or employees for harms created by them in the course of their duties”.

Various allegations of breach of duty were included in the Amended Statement of Claim at paragraphs [25]-[26], [32], [33], [34] (as to expiry of use-by date on 28 October 2012), [36], [37].

In essence, the plaintiff’s claim before the Local Court was a claim in negligence for pure economic loss. He alleged that he purchased a product from a third party, Patel Trading and/or Patel Brothers. The product, it was alleged, was packaged and distributed by the first defendant. The plaintiff’s case in the Local Court was that the product had passed its use by date. His case was that he, without realising that the product had passed its use by date, used it in the process of making Indian sweets. He claimed that by reason of the fact that the product had exceeded the use by date he could not fulfil an export order. He sought an award of damages in negligence equivalent to the value of the order he alleges he was unable to fulfil.

The proceedings had a protracted history in the Local Court. As the affidavit of Mr Garnon reveals, the proceedings were listed before the Local Court on 28 November 2013, 13 February 2014, 26 February 2014, 24 April 2014, 6 May 2014, 17 July 2014, 21 July 2014, 7 August 2014, 26 August 2014, 18 September 2014, 23 September 2014, 11 November 2014 and 2 December 2014. As earlier noted, the proceedings were then listed for hearing on 9 December 2014 and 13 March 2015.

In the course of the various hearings, orders were made against the plaintiff in relation to various interlocutory applications filed by him concerning the production of documents on subpoena. Orders were made on 21 July 2014 by Magistrate Stapleton together with an order for costs against the plaintiff in the amount of $2,000.

On 7 August 2014 Magistrate Bradd made an order against the plaintiff and additionally an order for costs in the sum of $1,000.

On 23 September 2014, Magistrate O’Brien made an order against the plaintiff and a costs order against him in the amount of $3,000.

The proceedings were heard by Magistrate Pierce on 9 December 2014 and 13 March 2015. The plaintiff did not serve or rely upon any evidentiary statements, affidavits or expert reports: Mr Garnon’s affidavit at [11].

The plaintiff on the first hearing date sought to tender a large number of documents. Objection was taken to many of them. The Magistrate admitted a limited number of documents. The latter constituted the plaintiff’s evidentiary case.

In the course of the plaintiff’s business, carried on by him as NYSA International, the plaintiff alleges that he received an order (Order 261) on 19 October 2012 from an entity, NYSA International Limited (NYSA UK) ([26Da] of the Amended Statement of Claim).

Order 261 was said to have been subject to a number of conditions. Those were referred to in descriptive terms in paras 30.1.3 to 30.1.10 of the Amended Statement of Claim. Those subparagraphs, however, did not specify the precise or exact terms of Order261.

Order 261 appears to have required 1,000 kg of Bundi Ladhoo and 1,000 kg of Gulab Jamun (Indian sweets) to be shipped by airfreight on 19 November 2012. Presumably, the costs of shipping 2 tonnes of sweets from Australia to the UK by airfreight would be significant.

The plaintiff’s case was that on or about 5 and 9 November 2012, he purchased two cans (400g and 800g respectively) of the product, Miller Pure Ghee, from Patel Trading and Patel Brothers in Blacktown (“the Store”) in order to fulfil Order 261 ([33] of the Amended Statement of Claim). The Store was not related to either of the defendants. It was said to have been a retail store that acquired Miller Pure Ghee and then on‑sold the product (and other products) to customers.

A can of Miller Pure Ghee purchased by the plaintiff allegedly had a stamp (presumably put on by the manufacturer) which said “Use by 28 October 2012”. The plaintiff’s case was that by the date he purchased the can, someone had put a sticker over the use by date stamp that said “Best before 28 October 2012”.

On or about 13 November 2012, at the time of checking Order 261 before export, the plaintiff alleges that he became aware that the Miller Pure Ghee he purchased on 5 and 9 November 2012 was past its use by date. In addition, his case was that the product did not have a batch number and was neither “Made in Australia” nor a “Product of Australia”. Consequentially, the plaintiff claimed that he was not able to comply with Order 261.

He alleged that he sent the remainder of the product sought by Order 261 to NYSA UK. He further alleged that the order was rejected by NYSA UK.

In the proceedings the plaintiff alleged that the defendants owed him a duty to exercise due care and skill to ensure they supplied safe food. Further, he contended that such a duty of care was commensurate with statutory duties that bound the defendants.

He alleged that the defendants breached their respective duties of care by selling the Miller Pure Ghee product: (i) when it was past its use by date; (ii) without having a batch number; (iii) that was neither Made in Australia nor a Product of Australia; and (iv) that listed false ingredients.

The plaintiff did not make any submissions in the proceedings in the Local Court on the issues of causation and/or remoteness of damage.

In addition to his claim in negligence, the plaintiff alleged that the defendants’ conduct in selling the produce was false, misleading and deceptive in that they failed to take adequate precautions against making what was said to be false or misleading representations in respect of the following:

In respect of the above allegations there was no specific claim made that the defendants’ conduct constituted a breach of s 18 of the Australian Consumer Law.

The Decision of the Local Court

Magistrate Pierce on 13 March 2015, in dismissing the plaintiff’s action, addressed various shortcomings in the plaintiff’s pleadings and the claim in general. His Honour stated:

Magistrate Pierce delivered an ex tempore oral judgment in favour of the defendants. He made the following orders:

On 8 April 2015, the plaintiff served an unsealed Notice of Intention to Appeal. On or around 27 April 2015, he served a Summons Commencing an Appeal filed on 15 April 2015 based on the following five “Appeal Grounds”:

As noted above, the defendants filed a Notice of Motion seeking an order for dismissal of the proceedings on the basis that they have been brought out of time and on the basis that they are incompetent, or alternatively an order that the plaintiff to be required to pay an amount by way of security for costs of the proceedings.

The defendants note in their written submissions, “the grounds of appeal are not concisely stated and it is difficult to identify the Plaintiff’s grounds of appeal with any level of precision. Nonetheless, a number of the orders and grounds of appeal appear to be interrelated”. The defendants’ submission as to the grounds of appeal are discussed at [54]-[77] below.

In relation to previous orders made by the Local Court, the affidavit of Mr Garnon establishes that there has been a failure by the plaintiff to pay the costs orders made against him and that the defendants’ costs of defending the Local Court proceedings were slightly in excess of $107,000 (inclusive of professional fees, disbursements, GST and counsel’s fees): at [14].

Mr Garnon noted that the conduct of the plaintiff’s claim had been significantly protracted on account of the plaintiff’s lack of legal representation: at [15]. He confirmed that the plaintiff has not paid the fixed sum costs orders which were ordered to be paid forthwith: at [18].

The defendants relied upon written submissions, being the Defendants’ Outline of Submissions dated 20 November 2015 and Defendants’ Supplementary Submissions dated 1 December 2015.

In support, as earlier indicated, the defendants relied upon the affidavit of Mr Ganon and the affidavit of Zachary Carrigan, solicitor, affirmed 25 November 2015.

As noted above, Magistrate Pierce delivered an ex tempore judgment in favour of the defendants on 13 March 2015. The Summons Commencing an Appeal was filed on 15 April 2015.

Rule 50.3(1)(a) of the UCPR required the plaintiff to file and serve his Summons within 28 days of the material date (namely 13 March 2015). Accordingly, the Summons should have been filed by 10 April 2015. The Summons did not include an application for an extension of time, as required by r 50.3(2) of the UCPR.

The defendants in their Written Submissions noted that the institution of an appeal out of time is an irregularity rather than a nullity and may be allowed to proceed to hearing if the circumstances would otherwise justify the proceedings being dealt with on their merits: s 63 Civil Procedure Act 2005 (NSW) (the CPA); and McDowell v Fox [2003] NSWSC 495 at [22].

The defendants however submitted that the circumstances do not otherwise justify the matter proceeding to hearing and that accordingly the Summons should be set aside pursuant to s 63(3)(a) of the CPA. The defendants submitted that on the very limited evidence that was admitted in the plaintiff’s case before the Local Court, the plaintiff failed to propound any viable cause of action in that Court. To permit the appeal to be brought out of time the defendants contended, would be completely futile given, inter alia, the failure of the plaintiff to establish any cause of action against them.

On 25 November 2015, the Court received submissions from the plaintiff which, in the most general terms, address the defendants’ contention that the appeal has been brought out of time. Whilst the plaintiff does not expressly provide an explanation as to the lateness of the appeal, he submitted that he was involved in a truck accident on 30 October 2009 and was admitted to hospital on 29 October 2015 for cancer treatment. The submission was in the nature of a mere assertion without evidence to support it.

Leaving to one side the fact that those submissions were provided out of time, there is a fundamental failure to appropriately respond to or address the specific contentions made by the defendants in their submissions or how any alleged medical condition or treatment prevented him from filing the proceedings in time.

The plaintiff’s Summons states that the plaintiff appeals from the “whole decision below”. The defendants noted that the plaintiff failed to state what decision he seeks in place of the decision of the court below, as required by r 50.4(1)(b) of the UCPR.

The defendants contend that the plaintiff’s appeal is incompetent as it fails to raise a question of law and is “otherwise doomed to fail”. For that reason it was argued leave to appeal would be required in order to challenge the decision of the Local Court on the bases of the many grounds relied upon. The defendants submitted that leave should not be granted in respect of the grounds relied upon. The defendants accordingly submitted that the appeal should be dismissed.

The defendants noted that the Further Amended Statement of Claim “…suffered from various syntactical issues that made it very difficult to follow” and that the pleading “confused a number of legal concepts”, referring to a number of pieces of legislation without identifying the relevant section relied upon: Outline of Submissions at [9].

The defendants characterised the plaintiff’s claim as being essentially based in negligence for pure economic loss. In that respect it was stated:

In their Outline of Submissions at [11] the defendants noted that in the course of the proceedings heard on 9 December 2014 and 13 March 2015 the plaintiff did not serve or tender any evidentiary statement or evidence, did not rely upon expert evidence and did not himself give evidence. The limited number of documents tendered and admitted into evidence were set out in a schedule to the Outline of Submissions (p 12). These documents are as follows: various invoices; various photos; letter from Sabi Foods to the Consumer, Trader & Tenancy Tribunal dated 29 April 2013; Sabi Foods Product Sheet dated 10 April 2013; halal certification – Australian Dairy Packaging; certification of registration – Sabi Foods; letter from FTA Food Solutions Pty Ltd; and certificates of registration and certificate of incorporation – NYSA International.

The defendants submit that the evidentiary basis to support a claim in negligence for economic loss, or for statutory breach, was materially deficient.

The plaintiff’s grounds of appeal were also addressed by Mr Garnon in his supporting affidavit. He submitted that they do not appear to give rise to any proper basis for the appeal against the decision or orders made by Magistrate Pierce on 13 March 2015.

In relation to specific grounds and orders sought in the Summons, the defendants submissions may be summarised as follows:

These grounds concern a subpoena, a copy of which is Annexure D to the affidavit of the plaintiff dated 1 September 2015.

The defendants rely upon the history of the issue concerning the subpoena as set out in paras [22]-[25] of Mr Garnon’s affidavit.

In the defendants’ submission, in light of that history, the matter of the subpoena having been raised on a number of occasions before the Local Court, it was contended that the further agitation of the issue is an abuse of process: Submissions at [30].

In addition it was submitted that the grounds relate to an interlocutory judgment and leave would be required.

As to the plaintiff’s contention in the second ground of appeal that the refusal by the court to amend the Statement of Claim constituted a breach of the rules of natural justice and its decision in that respect was infected by bias, the defendants noted that no basis was identified for such allegations.

The defendants stated that it appears that the plaintiff was referring to his application at the pre-trial review to vacate the trial date. It was noted that in this respect the plaintiff, in effect, is seeking to appeal against an interlocutory judgment and can only do so by leave. No leave was sought.

It was additionally submitted that the plaintiff was out of time. The Local Court refused the plaintiff’s application to vacate the trial date on 2 December 2015 at the pre-trial review.

It was further noted that the plaintiff failed to serve a proposed Second Further Amended Statement of Claim or seek leave to amend the Further Amended Statement of Claim.

It was noted that the plaintiff seeks an order permitting “old and new evidences” [sic] provided by him, subsequently provided by FTA Solution Pty Ltd and Sabi Foods: para [37] of the Plaintiff’s Outline of Submissions.

It was noted that to rely on further evidence the plaintiff must establish “special grounds” to justify the Court receiving the evidence.

It was submitted that the requirements for adducing “further evidence” (pre-trial unavailability, credibility and the probative value of the evidence) had not been established.

There was no evidence, it was submitted, that any further evidence was unavailable at the time of the hearing and no evidence as to its probative value.

It was noted that the plaintiff seeks “costs orders (no order as to costs)” [sic].

The defendants submitted that to the extent that the plaintiff seeks to appeal costs orders made by the Local Court, he requires the leave of this Court. Such leave had not been sought.

It was submitted that this ground does not on its face raise a question of law. It was noted that the plaintiff does not allege that the court below did not consider the plaintiff’s evidence or his submissions (which may raise a question of law): Outline of Submissions at [42].

It was submitted by the defendants that at best this appeal ground concerned the learned Magistrate’s consideration of the plaintiff’s submissions and evidence but no question of law is raised: Outline of Submissions at [43].

It was further submitted that by this ground of appeal the plaintiff appears to accept that he was unable to establish numerous factual allegations made in the Further Amended Statement of Claim. Reference was made to Items 1.1 to 1.5.

The defendants submitted that the third ground of appeal concerns an alleged failure by Magistrate Pierce to consider an affidavit that the plaintiff filed and served on 22 September 2014 on the final date of the hearing, 23 September 2014.

The defendants deny that the plaintiff ever in fact served an affidavit of 22 September 2014. Reliance is placed upon correspondence annexed to SK 2.

The defendants in any event state that it is difficult to see what relevance the affidavit could have in circumstances where the plaintiff failed to appear on 23 September 2014.

The defendants noted that the grounds of appeal raise two contentions in relation to the ruling by Magistrate Stapleton. The first was the plaintiff’s health. The second was a letter from the defendants’ solicitors indicating that the product was manufactured by FTA Food Solutions Pty Ltd.

The defendants noted that the plaintiff appeared on 9 December 2014 and presented his case. He also appeared through counsel at a pre-trial review on 2 December 2014. The basis for seeking the vacation of the hearing date was that he was required to undergo an Exercise Stress Test scheduled for 1:30pm on 9 December 2025.

As to the second basis, it was submitted that the letter in question, tendered July 2014, indicated that the plaintiff was aware of that information for many months.

It was further noted by the defendants that the first defendant accepted at the final hearing that it was a deemed manufacturer for the purposes of the Australian Consumer Law/Trade Practices Act. The question of who manufactured the product (as opposed to marketed and distributed), it was submitted, made no difference to the plaintiff’s claim in negligence.

Finally, the defendants submitted that there was no basis for the grant of leave, to the extent that the plaintiff required leave: Defendants Written Submissions at [55].

It was submitted that the plaintiff’s Summons does not raise any issues of principle, any questions of public importance, nor any other basis, including injustice, which would justify the grant of leave. It was submitted that no “unreasonable” factual error had been identified.

The defendants submitted that the appeal was incompetent and otherwise doomed to fail. They submitted that the appeal should be dismissed with costs.

In his Written Submissions dated 20 November 2015, the plaintiff submitted that at [48]-[54]:

Section 39 of the Local Court Act 2007 (NSW) provides:

Section 40 of the Local Court Act provides:

There is no right of appeal from the Local Court to the Supreme Court on a question of fact.

The principles of law as to what constitutes a question of law have been extensively reviewed by the authorities. In RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 at [13], Kirby J summarised a number of propositions and principles based on the relevant caselaw as follows:

Garling J in Young v Cooke [2016] NSWSC 408 at [35], quoted the above principles and observed:

In Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312, Bryson JA observed at [39] that limited rights of appeal are sometimes conferred in legislation in terms of “a point of law” or “a question of law”. The expression “question” or “point” of law is wider than “error of law”: Attorney-General for the State of New South Wales v X [2000] 49 NSWLR 653 per Spigelman CJ at [124].

The plaintiff in various ways endeavoured to formulate causes of action based upon wide-ranging allegations pleaded in the Amended Statement of Claim.

In the circumstances in which (a) the plaintiff’s pleading contained a series of allegations which lacked clarity and (b) the fact that the plaintiff adduced extremely limited evidence in the Local Court proceedings (discussed below), the precise bases for the various causes of action pleaded by him were obscure. It is evident that the Magistrate in the proceedings below was very mindful of the difficulties this presented.

Magistrate Pierce in his brief ex tempore judgment in favour of the defendants made it clear that for the plaintiff to have succeeded in a claim for economic loss in negligence it was necessary for him to establish that he was in some way vulnerable to the particular harm he alleged was caused by the defendants.

In essence, the plaintiff was alleging that the defendants owed a duty of care to consumers and others, including himself, inter alia, to ensure that retailers do not sell its products past their use by dates. As noted above, the plaintiff claimed that he suffered economic loss as he was unable to fulfil Order 261, due to the alleged negligence of the defendants.

Liability for pure economic loss may, of course, be imposed upon a defendant who has knowledge, or the means of knowledge, that a person, the plaintiff, as a member of a determinate class, was unable to protect himself or herself against the loss resulting from the defendants’ negligent act or omission. These principles were enunciated by the High Court in Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ [1976] HCA 65; 136 CLR 529. The evidence in the plaintiff’s case, however, was not directed to this aspect of the case.

Liability may exist but only if it does not unduly fetter a defendant’s legitimate commercial interest. Brennan J in Bryan v Maloney (1995) 182 CLR 609 at 632 observed:

Damages for pure economic loss in other words are not recoverable if all that is shown is that the defendants’ negligence was a cause of the loss and the loss was foreseeable.

Since the decisions in Caltex Oil (supra) and Perre v Apand Pty Ltd [1999] HCA 63; 198 CLR 180, the question of the vulnerability of a plaintiff has been identified as an important factor in establishing liability. The concept was discussed by the High Court in Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 at [23]:

In the present case there was no direct sale by the defendants to the plaintiff of the cans of ghee butter to the plaintiff. As a general rule, there is no obligation on a person to control the actions of another: Smith v Leurs [1945] HCA 27; 70 CLR 256 at 262 per Dixon J. That general rule may apply between a wholesale supplier and a retailer. There was no evidence adduced in the Local Court proceedings from which it could be said that the defendants owed consumers a duty to ensure that retailers do not sell its products past their use by dates.

In addition, the imposition of liability for the negligent infliction of pure economic loss as discussed above must be satisfied by evidence in accordance with the principles enunciated by the High Court in the abovementioned decisions. The evidence in the present case fell well-short of satisfying those principles.

Moreover, on the evidence the plaintiff, as a businessman, was able to protect himself from the consequences of the defendants’ alleged want of reasonable care and as such was not vulnerable in the requisite sense. The plaintiff had the ability to verify that the cans of ghee were appropriately labelled as to use by dates. By virtue of his experience as a general and business consumer the plaintiff could have been expected to check to ensure that goods had not expired at the time he purchased them.

In order to establish a right of appeal the plaintiff’s grounds of appeal must identify an error of law. The grounds of appeal range over a number of procedural and other issues. They seek to challenge interlocutory orders made on a number of occasions in relation to issues that do not provide any basis for a challenge to the final order made dismissing the proceedings. The plaintiff’s Summons sets out eight orders and five appeal grounds.

The defendants submitted, in my opinion correctly, that the terms of the Grounds of Appeal are not concisely stated and that it is difficult to identify the plaintiff’s grounds of appeal with any degree of precision.

Although there is a lack of precision in the way in which the grounds have been framed, it is still necessary that I seek to determine from them whether or not one or more of the grounds can be said to raise a question of law.

The five “Appeal Grounds” contain a number of deficiencies and defects as follows:

Mr Garnon in his affidavit noted, as observed above, that the plaintiff’s Summons seeks to re‑agitate an assertion that the defendant(s) failed to produce documents required by a subpoena. A copy of the subpoena is annexure “E” to his affidavit. The history of proceedings concerning the subpoena as noted earlier is summarised in paragraph 22(a) to (c) of Mr Garnon’s affidavit. The further history concerning the subpoena is set out in paragraph 22(d) to (e) and 25 of that affidavit.

On the basis of the above evidence, there is no matter associated with the subpoena referred to in the “Appeal Grounds” to the plaintiff’s Summons that constitutes a basis for the appeal proceeding in this Court.

I have considered whether Ground 1 could, at least impliedly, allege a failure to consider the plaintiff’s submissions and provide adequate reasons for the Magistrate’s decision.

On 25 November 2015, following oral submissions with counsel for the defendants, I directed counsel to put on written submissions by 1 December 2015 regarding the position of an appellate court if it determines that a primary judge has failed to provide adequate reasons in circumstances where no other error of fact or law has been established by the plaintiff. The plaintiff was initially given until 8 December 2015 to reply to submissions received from the defendants but following the plaintiff’s request for an extension, I extended the date until 11 December 2015.

In response to the direction, the defendants provided written submissions on 1 December 2015. The defendants noted that the Court of Appeal has on a number of occasions referred with approval to the following “synthesis of authorities” in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116] (per Campbell JA, Allsop P and McColl JA agreeing):

In Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 Santow JA (with whom Mason P and Sheller JA agreed) relevantly said (at [41] and [43]):

The defendants argued that relevant caselaw authorities establish that even if the primary judge has failed to give adequate reasons, this Court has a discretion as to whether a new trial should be ordered. If the only conclusion open on the evidence adduced in the Local Court is the conclusion reached by the primary judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial.

The vast majority of the plaintiff’s submissions dated 9 December 2015 do not address the issue of adequacy of the Magistrate’s reasons. The plaintiff again concentrated on the issues concerning the allegations of negligence that were before the Local Court.

The plaintiff noted that the defendants relied upon the decision in Keith v Gal [2013] NSWCA 339 at [151] for the proposition that an appellate court has a discretion as to whether a new trial should be ordered if it concludes that the primary judge has failed to give adequate reasons. The plaintiff submitted that the defendants provided an incomplete reference to that judgment and drew attention to paragraphs wherein the Court of Appeal concluded that those proceedings in that case should be remitted for a new trial on damages.

The plaintiff made the following relevant submissions:

None of the grounds raised by the plaintiff in the Summons raises a question of law. The plaintiff accordingly has no right of appeal under s 39 of the Local Court Act.

The grounds do not, in my opinion, raise a question of mixed law and fact and they do not identify any error in the Magistrate’s decision.

The Magistrate’s ex tempore reasons were expressed in brief terms. I do not however consider that they were so deficient as to fail to disclose the basis for the decision given in favour of the defendants. Even if I am wrong in that respect this is not a case in which any inadequacy in reasons would justify an order for a new trial.

An appeal must be filed within the time specified in the UCPR (r 50.3(1)(a)). The plaintiff’s proceedings were not filed within the time required, namely, 10 April 2015. There does not exist any circumstance that would justify the proceedings to be determined on the merits for reasons discussed above. The failure to commence proceedings in this Court within the prescribed period constitutes a basis for the Summons to be struck out. There are no discretionary grounds for the prescribed period under r 50.3(1)(a) to be extended.

On the basis that the grounds for an appeal set out in the Summons do not raise a question of law the Summons must be struck out or dismissed.

As earlier discussed, the proceedings before the Local Court were brought upon very limited documentary evidence, being the documents listed in the schedule to the Outline of Submissions (p 12). The plaintiff did not himself give evidence. There is no evidentiary basis for any asserted error by the Local Court in the proceedings below either as to procedural, pre-trial rulings, or that Court’s decision in entering judgment in the substantive proceedings in favour of the defendants.