Kumar v Primes

1. [1]

   BELL CJ: On 28 November 2023, Waugh SC DCJ (the primary judge) delivered judgment in favour of the plaintiffs in the sum of $804,697 and ordered the defendant to pay the plaintiffs’ costs of the proceedings.

2. [2]

   The unsuccessful defendant (Shashwat Kumar or the appellant) filed a Notice of Appeal on 27 February 2024 from the whole of the decision below.

3. [3]

   In written submissions and by Amended Notice of Appeal dated 13 May 2024, the ambit of the appeal has been confined to two of the original four grounds of appeal and no longer challenged the whole of the decision below. The first relates to a decision, not of the primary judge (to whom the Amended Notice of Appeal incorrectly refers) but of Gibson DCJ, refusing to grant an adjournment of the hearing of the proceedings on 27 November 2023 (the adjournment decision). The second relates to a further interlocutory decision of the primary judge to grant the plaintiffs leave to amend their statement of claim to add a claim for a further $50,000 to the amount already sought in the original statement of claim (the amendment decision).

4. [4]

   Confined as it has been to these two grounds, both of which involved discretionary interlocutory decisions on matters of practice and procedure, Mr Wood SC, who appeared for Mr Kumar, accepted that leave to appeal was required. Consistent with this, the Amended Notice of Appeal recites that the appeal is brought pursuant to s 127(2) of the District Court Act 1973 (NSW).

5. [5]

   On the other hand, the Amended Notice of Appeal seeks to set aside “[a]ll of the orders” of the Court below. Given that the orders from which the appeal was brought were final in nature, there is a question whether the concession as to the requirement for leave was properly made.

6. [6]

   It is possible to challenge an interlocutory order in an appeal against final judgment where the interlocutory order “affected the final result”: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [6] (Gerlach). In the following paragraph of their joint judgment, Gaudron, McHugh and Hayne JJ said that it was necessary to make the qualification “which affected the final result” “at least to reflect the well-established principle that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice.”

7. [7]

   In this context, r 51.53(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides that:

8. [8]

   On any view, a new trial would need to be ordered were Mr Kumar to succeed on either of his grounds of appeal. So much is reflected in the relief he seeks in his Amended Notice of Appeal. It follows that, whether requiring leave or not, Mr Kumar needed to demonstrate that “some substantial wrong or miscarriage” was occasioned by the two interlocutory orders challenged.

9. [9]

   It may be doubted that the adjournment decision “affected the final result” in the sense in which those qualifying words were used in Gerlach at [6]-[7]. Certainly so much was not demonstrated on behalf of Mr Kumar. As such, leave to appeal from that decision was in my opinion still required, as Mr Wood conceded and as Mr Sulan SC, for the Respondents, submitted. The amendment decision was in a different category as, without it having been made, the final result would have been for $50,000 less than the sum ultimately awarded by the primary judge. The amendment decision demonstrably “affected the final result.”

Leave to appeal

1. [10]

   The relevant principles relating to leave to appeal in relation to interlocutory orders on questions of practice and procedure were conveniently set out in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 (PPK Willoughby) at [3]-[6] in the analogous context of a challenge to a decision to order security for costs. What was there said in relation to security for costs applies equally to adjournment and amendment decisions:

2. [11]

   In Hamod v State of New South Wales [2011] NSWCA 375 at [134]-[135], Beazley JA said:

3. [12]

   Before turning to consider both grounds of appeal, the procedural background should be noted.

Procedural background

1. [13]

   The procedural background to the dispute appears sufficiently from the following chronology:

Adjournment decision

1. [14]

   Gibson DCJ delivered clear reasons for her refusal to grant an adjournment of proceedings, having received and considered affidavit evidence from Mr Kumar as well as Mr Parker, the solicitor for the defendants. The transcript of argument on the adjournment application ran for some 22 pages.

2. [15]

   In written submissions, although not in the Amended Notice of Appeal, it was submitted by Mr Wood that Gibson DCJ applied the “wrong test” in refusing to grant an adjournment. The passage relied upon to support this submission came near the very end of her Honour’s reasons for judgment and was as follows:

3. [16]

   Understood in its proper context, her Honour was not here, in the italicized words, stating the test for an adjournment of proceedings but simply making the unexceptional point that the later an application for an adjournment is brought, the more difficult it will be to obtain one. That may be for a number of reasons, including the likely adverse impact on other litigants, as well as the impact on witnesses and legal representatives for the instant case. Her Honour had earlier in her reasons referred to the High Court’s decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (Aon), a decision which considers both amendments and adjournment applications: see, for example, at [25] referring to the importance of adherence to trial dates “so far as possible and subject to overriding considerations of justice”, quoting King CJ in Dawson v Deputy Commissioner of Taxation (1984) 71 FLR 364 at 366; see also at [30]. Her Honour also referred to the District Court’s Practice Note DC (Civil) No 1 which in paragraph 13 refers to adjournments.

4. [17]

   There is no basis for concluding that Gibson DCJ applied the wrong test in her disposition of the adjournment application.

5. [18]

   The “particulars” in respect of the challenge to the refusal to grant an adjournment as set out in the Amended Notice of Appeal were as follows:

6. [19]

   As to the claim that Gibson DCJ failed to take into account that Mr Kumar had recently lost his legal representation, that is demonstrably not the case as the following extract from her Honour’s reasons makes plain (and indeed as Mr Wood conceded during oral argument):

7. [20]

   Insofar as Mr Kumar contended that her Honour failed to give adequate weight to his recent loss of legal representation, questions of weight given to relevant factors in the context of a discretionary decision are classically matters for the primary judge in accordance with House v The King (1936) 55 CLR 499; [1936] HCA 40. Moreover, as Latham CJ observed in Lovell v Lovell (1950) 81 CLR 513 at 519; [1950] HCA 52:

8. [21]

   This passage applies equally to the second “particular” relied upon by Mr Kumar under this ground of appeal: see [18] above. It is not in doubt that Gibson DCJ placed some weight on Mr Kumar’s procedural non-compliance in considering whether to grant his adjournment application. Quite properly, it is not suggested that it was not open to her Honour to do so and, as her Honour observed, this was a case where there had been serious non-compliance:

9. [22]

   As to the third particular, there was a proper basis for her Honour’s assumption that Mr Kumar would not be able to meet an adverse costs order in the event that an adjournment had been granted: he had volunteered to her Honour that he was under financial pressure; his lawyers had ceased to act for him in circumstances where there was evidence before her Honour that he had been requested to deposit funds into their trust account; and he had himself led no evidence as to his ability to satisfy an order for costs thrown away. Moreover, as observed by French CJ in Aon at [5], “whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings.”

10. [23]

    The decision to refuse an adjournment was not only open to Gibson DCJ but, in my opinion, clearly correct. Moreover, the challenge to that decision does not meet any of the criteria warranting the grant of leave to appeal in an appropriate case, namely it does not involve “an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable”: see PPK Willoughby at [6].

11. [24]

    Nor was it shown to have given rise to a miscarriage of justice or “some substantial wrong”: see [7] above. In this context, it is relevant to recall that, for more than 3 months after service of the plaintiffs’ evidence, and while Mr Kumar was legally represented including, it would appear from correspondence, by counsel, no evidence was filed in support of any defence or the Cross-Claim which had been filed on Mr Kumar’s behalf. Nor, in either written or oral submissions before this Court, was any evidence referred to or outlined which would support a conclusion that the failure to grant an adjournment of proceedings had resulted in a miscarriage of justice or substantial wrong. Evidence could have been led in this regard: Whall v Stamp [2019] NSWCA 163 at [11]-[12], [82]. It was not. In analogous cases, a party complaining of procedural unfairness bears the onus of demonstrating the materiality of any such unfairness: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34.

Amendment decision

1. [25]

   The ground of appeal relating to the amendment decision was as follows:

2. [26]

   One fundamental issue with this ground of appeal is that it was not during the hearing that the question of the amendment was raised “for the first time”. Indeed, as pointed out by the Respondents:

3. [27]

   The letter of 31 July 2023 explicitly stated that “[w]e put your client on notice that the Plaintiffs’ [sic] intend to seek leave of the Court to file the Proposed Second ASOC at the hearing of the Proceeding on 27 November 2023.” On the same day, the plaintiffs served evidence in support of their proposed additional claims as well as their other claims.

4. [28]

   As refined in Mr Kumar’s written submissions on appeal, criticism was made of the fact that there was an implicit decision to dispense with the requirement to file and serve a notice of motion under r 18.2(2)(c) of the UCPR in the circumstances of the case, as well as of the ultimate decision to grant leave to file a Second Amended Statement of Claim at the hearing.

5. [29]

   As to the first point, Mr Kumar, through his then solicitors, had been squarely put on notice of the proposed amendment for many months prior to the hearing, and there was no surprise or procedural unfairness in the manner in which the amendment was foreshadowed or pressed. As the primary judge observed in his reasons for judgment:

6. [30]

   A perusal of the transcript also shows that the primary judge satisfied himself that adequate notice of the proposed amendment had been flagged to Mr Kumar through correspondence with his then solicitors.

7. [31]

   It is entirely appropriate to infer that they had drawn the proposed amendment to his attention. As was also pointed out in written submissions on appeal, Mr Kumar also had access to a soft copy of the Court Book four days prior to the hearing on 23 November 2023, and that included a copy of the proposed Second Amended Statement of Claim.

8. [32]

   It is also important to note that the amendment application had also been flagged in the adjournment application before Gibson DCJ and, prior to seeking to be excused by the primary judge, the appellant was in Court when counsel for the Respondents had expressly referred the Court and the appellant to the fact that leave would be sought to file the Second Amended Statement of Claim in the course of the hearing.

9. [33]

   In all the circumstances, it must be concluded that the appellant was on notice of the proposed amendment. Moreover, no indication is given in his written submissions as to what defence, if any, he would have raised in relation to what was described as the second assignment claim in respect of $50,000. No evidence had been filed on his part during the whole of the time he was represented in relation to the first assignment claim which, as the respondents pointed out, arose from the same series of transactions or payments as the second assigned debt, being payments made from the account in which all parties previously had an interest, namely Bads Developments Pty Ltd, to the appellant. The only difference between the first and second assignments was that the respondents had taken the assignment of the $50,000 debt from a third party.

10. [34]

    No miscarriage or substantial wrong has been demonstrated.

11. [35]

    I would dismiss this ground of appeal.

Conclusion and orders

1. [36]

   To the extent leave to appeal was required, such leave should be refused with costs. The appeal should otherwise be dismissed with costs.

2. [37]

   WHITE JA: Subject to the observations below on whether leave to appeal is required, I agree with the Chief Justice.

3. [38]

   Notwithstanding the concession of senior counsel for the appellant, in my view leave to appeal is not required.

4. [39]

   Save as to a sum of $27,000, the notice of appeal challenges the order of Waugh SC DCJ entering judgment for the respondent for $804,697 plus costs. That was a final order. In support of that challenge the appellant challenged two interlocutory orders. The first was the order of Gibson DCJ dismissing his notice of motion for an adjournment of the hearing. The second was the order of Waugh SC DCJ allowing the respondent’s amendment to the statement of claim.

5. [40]

   As the Chief Justice explains, for the appellant to succeed on the first ground, he needed to establish that Gibson DCJ’s discretion miscarried and her Honour’s dismissal of his adjournment application occasioned a substantial wrong or miscarriage of justice. If he had established those matters then that would have affected the final result (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [6]). The final judgment would have been set aside and a new trial ordered.

6. [41]

   In Nobarani v Mariconte (No 2) [2017] NSWCA 124 and on appeal Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36, the appellant complained that he had been denied procedural fairness by interlocutory decisions of the trial judge to fix the substantive claim for hearing at very short notice and to decline requests for adjournment. His appeal was upheld by Simpson JA in this Court. Her Honour’s judgment was upheld in the High Court. It was not suggested that leave to appeal was required. The denial of procedural fairness vitiated the final decision.

7. [42]

   For the reasons the Chief Justice has given, Gibson DCJ’s decision to refuse the requested adjournment was plainly correct, as was the decision of Waugh SC DCJ to allow the amendment.

8. [43]

   As the appellant conceded that leave to appeal is required, I agree with the orders proposed by the Chief Justice.

9. [44]

   STERN JA: I agree with the Chief Justice.